FEDERAL REPORTEil,

vol. 50.

present case may be reviewed on appeal, iris the duty of the court, in accordance with the practice in equity, as stated by the suto direct that the defendant produce the letters, as depreme manded. The order will be made, however, without prejudice to the right of the defendaI.lt to renew the claim of privilege hereafter, by a motion to suppress the letters, at the proper stage of the proceedings.

STINSON

i1.

DOOLITTLE el

al.

(Circuit Court, D.Minnesota. April 14, 1892.)
1.

DEBDS-TwICB RECORDED-PRESUMPTIONS-EVIDENCE.

:Whenthe records of a deed in two deed-books differ only In two material points in the description of the properly, and the date, grantors, grantee, consideration, acknowledgment, and signature of the notary are the same in each, the presumption. is, not that the first book contains the correct record and the other the record . of soine other deed or of the original deed after a change in the description has been made. but that they are records of the 'same deed, with mistakes in one of them; and in, seeking to determine in which of the two the mistakes are, the origi. nal deed' being lost, the court will consider the evidence afforded by the records themselves as to which has been more carefUlly registered, the situatiou of the property as described in each, and the condUct of the parties in reference to the property in dispute. '

2. SAME-EFFECT 011' RECORDING. Gen. St. Minn. 1878, p. 587, § 21, and ld. p. 805, § 96, do not limit the effect of the register's record of a deed as evidence to the first record of it, but give at least

. equal weight as evidence to later records properly made.

In Equity. Suit by James Stinson against Ormis H. Doolittle, Charles J. Doolittle, and others to correct a mistake in the record of a deed. Decree for complainant. This iaa suit in equity, and the complainant seeks a decree declaring that Il certain deed made by one Benjamin F. Hoyt and wife to David Schellenbarger, dated June 21, 1850, described and conveyed "fifteen and two ontl"hundredths acres off the south side of the north-west quarter of the north-west quarter of section number thirty, (30,) in township number twenty-nine (29) north, of range number twenty-two (22) west of the fourth principal meridian;" that this deed was by mistake so recorded in Book A of Deeds, pages 492 and 493, of the Ramsey and two one-hundredths county. records, that the same read @.<)res off' the north sirle" of the quarter quarter mentioned above; that spe},), deed did not in fact describe this north 15.02 acres of the quarter quarter mentioned above; that, so far as the same relates to this tract of, .land. this deed was Correctly recorded in Book K of the Ramsey cO;ulity records, at pages129 and 130, on October 6, 18.54; that the deOrmus H. Doolittle· and Charles J. Doolittle, who derive their title to the 15 .02 acres off the north side of said tract through a quitclaim deed from David Schellenbarger and Wife to Charles J. Doo-. dated September 10, 1888, and recorded August 22, 1889, in Book·227 .?f at page 543, be declll,red to have no title to this

B.TffiSON V.DOOtITTLB.

13

tract as again.st the complainant, whoderives'his title from Benjamin F. Hoyt; and that the conveyances in the chain of title from Schellenbllrger to OrmusH.Doolittle, and the records thereof, be decreed to be void as against the complainant. The bill alleges that Benjamin F. Hoyt, being the owner of the W. i of the N. W, t of section 30, on June 21, 1850, conveyed theS. W. t ofthe N. W. t of said section, which contained 34.98 acres. and 15.02 acres off the south side of the N. W. t of the N. W. t of said section, to David Schellenbarger, making a tract of 50 acres in one body; that this conveyance was so recorded in Book A of Deeds, pp. 492, 498; that the 15.02 acres was erroneously described therein as off the north side instead of off the south side of said N. W. t of the N. W. t of said section; that on the 6th day of October, A. D. 1854, this deed was again recorded in Book K of Deeds, on page 129, and that in this second record the 15.02 acres was properly described as off the south side of said quarter quarter; that the title of Benjamin F. Hoyt to tbis 15.02 acres off the north side of theN. W. t of the N. W. t passed by mesneconveY\lnces to, and in November, 1856, vested in, the complainant, James Stinson, who, on or prior to October 24, 1884, had also become the owner of the balance of this quarter quarter, and that the deeds evidencing his chain of title from Hoyt to the entire quarter quarter were prior to that time duly recorded; that in October, 1884, the complainant platted the entire tract last mootioned as "StinBon's Rice-Street Addition to St. Paul," duly recorded his plat, and sold and' conveyed by deeds, with covenants of warranty, to divers personsj lots situated upon said north 15.02 acres, and some of his grantees were in open possession of their lots on said tract prior to September 10, 1888, under his deeds; that complainant still owns lot 4, block 4, and blocks 2 and 3, of said addition, which are a part of said north 15.02 acreS, and are worth $18,000; that on September 10, 1888, defendant Charles J. Doolittle, with intent to cloud the title of and injure the complainant, obtained from Mr. Schellenbarger a quitclaim deed of said norta 15.02 acres to himself; that in August, 1889, he made a deed of this tract to defendant Ormus H. Doolittle, who in turn made a mortgage to Charles J. on said tract for $2.700, and this mortgage and these two deeds were recorded in August, 1889. and that the defendants had full knowledge of the facts alleged in the bill when they obtained their r.espective deeds; that the tract which these deeds describe is worth $60,· (lOO, and the defendant Ormus H. Doolittle claims title to it under these .deeds,and defendant Charles J. Doolittle claims a lien to the amount of themQrtgage thereon, and these deeds, records, and claims cloud his title and prevent the sale of his lands. The answer admits that Benjamin F. Hoyt, on June 21, 1850, owned the W. f of the N. W. t of section .80; that on that day he made the deed in question to David Schellenbarger,but denies that that deed conveyed the south 15.02 acres of the N. W; lor the N. t of seotion 30, or that it was erroneously recorded in Book Aof Deeds, but avers that said deed described and conveyed the north 15.02 acres of :this quarter quarter; and that the recotd in .Book A,:atpages 492, 44j)3', is a true record of the deed·. TheanBwer

J'EDP4J,.r REPORTER. vol.

50.

the execution and rellol'dof the deeds from Schellenbarger and ·wife. tQCharles J. Doolittle: and from Charles J. Doolittle to:Ormus H. DOQlitUe,and of the Ormus H. to Charles J. ,alleged in t/:le<'bill, Qllt denies all fraud .andevilintent; avers that Schellenbarger WaS owner of the tract in question, and that defendants were biJna fide purchasers for value, without notice of any defects in Schellenbarger's title 01' claims of complainant or his grantees; and denies all the other material allegations of the bill. ThQmpson& Taylor and {leorgeB· .Young, for complainant. John W. Pinch and Sa?n'U,dWhaley, for defendants. ,Bjilfore S,-\NBORN, Circuit Judge, and NELSON, District Judge.
SANBORN, Circuit Judge. The: first question in this case is whether Hoyt and wife, by their deed of June 21, 1850, described and conveyed to Schellenbarger 15.02 the north side or off the south side of the N.W.l of the N. W·. i ;of section 30, and if it is found that the d®d in qu!'Stion did not describe and convey the north 15.02 acres, that finding is :decisive of thecasej, forjif Hoyt never conveyed this tract to Schellenbtl.l'ger, his deed to defendant Doolittle conveyed nothing, and none .01' the' defendants have any, title to this property. It is established by the proofs that whatever;rtitle remained in Hoyt after he made this deed to Schellenbarger passed to and was vested in complainant in A. D. 1856, that the deeds:by which this title so passed were all recorded as early as the closeof,that 'year, and tbat whatever title Bohellenhad after tbe delivery of the Hoyt deed to him has passed to defendant Ormus H. Doolittle lmder the deeds in evidence. The original deed from Hoyt to Sohe]J(Jnbarger iSllot produced, nor is there among the proofs the testimonyof,any,witness who has read this deed as to its appearAhatSchellenoarger caused .this deed to be contents. It its record it was returned to him; that he recorded in BoC)k A, anI!: a did not cause it to be recof4e<;lin Book K of Deeds, in 1854; and that after thatrl'cord the illstnHnent, there recorded was delivered to one S. Walker. The record in Hook K of.Deer{s varies from that in Book A in 19 particulars, 2 of which are variances and 17 are immatprial. One of material varian,c£ls is that the 15.02 acres is dellcribed in Book A ll"'. off the northshle; while in Book K it is described as off the south side, pf the qUfll'ter quarter. Defendants' counsel claim that under this proof the presumpti.onis that the record in Book A is the only c,orrect rCQOrdQf the originaldeed,ltnd that the recordin.Book.K must be presomed to be the record pf some other deed, or of the original deed aftf\r H hlldbt:en chllnged and made to describe other property than that Wqich iirl/ally c.onveyed. :' We ,been. forcedtQ a ,djfferent concl usion. Each of these records d.isclosesa, .d·!l$1f bearing thesllme, date, having .the same grantors, the 8ame grantee., the, same considera,llion, the same long descriptions with but two material variances, and: anacknowlt:dgment dated the same day by the Same notary public. testifies that ./;le. neverobtained but one :deed from Mr. Hoyt, and it seems to us that

16
Qoth of are,reeoJ1ds ofthe same deed, aJ;'e mistltkes itl()ne them, is in itself m.nch less· .violent th.an ill ttl, presume that tbela:ter rooolld is of, ,another deed procured p!f;f:}()JUethird party, ot that it is the record of the original deed, and changed to convey other property than that origlin it,and. the register, in 1854, recorded such a spudo\1.Sinstrument as the, reCord ofanoriginal and valid deed. Hence we that these tworeeords are records of the same instrument, and, IULirHhe description, which is material in this case, we find ,the wi>rd"nQrth." written in Book A where the word "south" is written in BookK, ,one of these records must be erroneous in this particular, and we Come to consider which it is. counsel contend that the statute authorizes one record of a"de®;.and nO more, and hence,that.thel'ecord in Book Aof Deeds is t1;le 01)1)'; Tecord ofthis deed that is entitled to weigh as evidence ofits contentB,.,," We do not so understand the law. We think the statute does not limit tb,e effect of record of a deed as evidence to the firstr!iicqrd: thereof, but. gives at least equalweigbt as evidence to later recorrJs,properly made. Gen. St. Minn. 1878, p. 537 ,§ 21; ld. p. 805, §, 96. ,We pave, then,. two of this deed, each evidenc'e of its ctmtenw,anq possibly, in the first instance, .equally entitled to credence. Art 'examination of the two records, however, inclines the mind to the00nclusion that the scribe who made the record in Book K was more careful aud painstaking than be who made the record in Book A. There are eight instances where a written word, expressing a number, is followed by the figuresexpressi.ng the Same number in brackets in K, while these-figures and brackets do not appear at all in A. Therepeti.. tion.of these numbersllmkea the meaning orlegaleffect,of the instrument, and it is inconceivable that any one would have inter... polated these figures after the first record. The only rational inference is that they were in the original deed, and. the, more carefulS(lribe,recorded them, while the less careful omitted them; so that a comparison of the two records leads to the conclusion that the later record is more likely to be correct. Again,U the deed read as does the record in K, it conveyed 50 acres in one body; if as in A, the 15.02 acres were separated by an intervening tract from the 34.98 acres there described; and Mr. Schellenhatger testifies :that he bO\lgnt tbis, ,50 acres ;of Hoyt in one body; that in the succeeding year he sold the same 50 acres he bought of him back to Mr. Hoyt; .and the deeds be madetooarry out this resale to Mr. Hoyt were plainly intended to describe, and the later one do,es desoribe; the south 15.02 acres,and neither of them desClribesthe riorth.15.02acres. From 1856 to 1887 ,Mr. Stinson, the complainant, paid all taxes and about $3,000 of assessments on the property bere iII Jor grading streets through it, and Mr. Scbellenbarger, wbo for resided "ithin 10 milel1 pf this land,never exeroised. ow,Q¢rship Over or claimed aily title or interest in any of this J;1orth15. ·. which :a,re proved by this record,qave forced' tis to the conclusion tha't the deed from Hoyt to Schellenbarger

02

16

nDBBAL ,REPORTER,

voL 50.

never in fact described or conveyed the north 15.02 acres of the N. W. I of the N. W. I of this section 30. This disposes of this case, and the questiQn of the bfmcifide8 of the defendants becomes immaterial; but we are satisfied from the' evidence that, before either of the defendants obtained any conveyance of this land, at least four of the complainant's grantees were occupying houses standing upon this north 15.02 acres, c1aimingtitIe tinder the complainant and Hoyt. This was notice of complainant'srights and title. Morrison v. March, 4 Minn. 429, (Gil. 325j) New v. WMaton, 24 Minn. 409. The proofs also establish the fact that this I5-acre tract was worth at least &50,000 in 1888j that defendant Charles ,J. Doolittle discovered the condition of the titJeto this tract by examining the title to the south 15 acres of the quarter quarter, as he was negotiating a loan upon it; that he examined all the general indexes in the register's' office under the letter S to see if Schellenbarger had conveyedthis northerly 15 aeres. And he testifies" he did not know how much interest he [Schellenbarger] might have there, but at any rate he th'ought'hewould go into it for a speculation, and risk a little money in it, and there might be somethipg in it.» He then obtained a quitclaim deed of and,wife j for which he paid $30. About a year afterwards, in August, 1889, he conveyed to his brother, Ormus, for $3,200, (&500 Cash arid mortgage on the land,) and then first recorded his deed fromSchellenbarger. Ormus never saw the land, although he lives within 75 miles of it,and knew nothing of its value, but bought it solely on his brother's representations to him. Under this proof the defendants have no better title in equity or at law than SchelleJlbarger had, in any event, and Schellenbarger's testimony shows that he had none in equity, and we have found he had none at law. The complainant is entitled to the relief prayed for in the bill. Let a decree be entered' accordingly.

NELSON, District Judge, concul'L

itHEA til aI.

fl. NEWPORT

N. & M. V. R. Co.

(OtrcuU Oourt, D. KtmtJutJk1J. April 7.1892.)

I.

:RATlGAllLB

A railroad' company, elilpowered by its charter to erect and maintain. bridge across the Cumberland river, in Kentuoky, II so II.B not unreasonably to obstruot navigation," while rebuilding II. portion o:t tlle bridge whiCIl had been blown down, erected a temporary bridge, which interfered with naYigation, but with all tbe packet companies plY,ing the ,riv.er, :tor the transfer of all freili\'ht witboui extra charge to shippers. The amount of traffio of ij;le railroad largely exceeded tIlat on the river, and publiC) convenience WII.B in fact subserved by tbe plan pursued bV the railroad company. Held, that this was not an unreasonable obstruction o:t navigation, and a shipper who refused to send his grain by water the was entitled to reooverthe utra paid for traDsportinS l'

WATBRs-QllSTRVCTION-EREOTION

OJ' BRIDGEB-LuBILITIB&