Messersmith v. Smith

60 N.W.2d 276 (N.D. 1953)

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Nature of the Case

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Facts

Frederick Messersmith (P) and his Aunt Caroline each owned a half interest in three sections of land in Golden Valley. On May 7, 1946, Caroline executed and delivered a quitclaim deed to the property to P. That deed was not recorded until July 9, 1951. Caroline leased oil and gas rights to Smith (D) on April 23, 1951, and recorded that lease on May 14, 1951. Caroline claims that only royalties were negotiated while D claims that the matter of a mineral lease was agreed upon. On May 7, 1951, Caroline executed a mineral deed containing a warranty of title to Smith for an undivided one-half interest in and to all oil, gas and other minerals in and on the land, and recorded it on May 26, 1951. Smith claims a notary was there and Caroline denies this. Caroline also claims that she was never told she was signing a mineral deed. Caroline was paid $1,400 consideration, which she still retains. After leaving the house that day, Smith noticed an error in the deed wherein the term “his heirs” was used for the term “her heirs.” Smith returned to the home the same day, explained the error and tore up the first deed and prepared another in the same form except the error was corrected. Smith claims he took the deed to the same notary and called Caroline for her acknowledgment over the phone. The notary had no independent recollection of the transaction. On May 9, 1951, Smith executed the mineral deed to Seale (D1). This was recorded on May 26, 1951. D1 claims that this deed cut off P's prior deed, which was not recorded until July 9, 1951, because D1 was without notice, actual or constructive of P’s claim. The jurisdiction followed a race-notice recording statute. P sued to quiet title in the land; D's deed was improperly acknowledged and was a nullity, and thus it was not entitled to be recorded and was obtained by fraud, deceit, and misrepresentation. D defaulted. The trial court did not agree with P. The trial court found that the deeds were not procured by fraud or through false representations. P appealed.