McKusick v. County Commissioners

By the Court Ripley, Ch. J.

The description in the deed first set up in the complaint is so uncertain, that it cannot be known therefrom what was intended to be conveyed. The deed is therefore void, and the allegations which precede the statements respecting the second deed, amount to no more *155 than, that on the 20th of December, 1847, plaintiff owned land in Stillwater now known as lot one, block thirty-two, on the town plat, and other lands in the vicinity of such lot, and that at some time thereafter and prior to said second deed, defendants had erected a court house on said lot for the purpose of holding courts, and transacting other public business of said county, and had used and maintained said court house for such purposes, and as the seat of histice of said county.

It is not alleged that plaintiff had dedicated the land to the public for such use, by any act in pais, and as assent to the use is not even alleged, nor any length of time for which it had been so used, the elements from which a presumption of such dedication could arise, are therefore wanting.

There having been no dedication, it follows that there is no foundation for plaintiff’s claim that the second deed was merely confirmatory of such dedication. It is said, however, that if it be not taken to have been merely a confirmatory deed, as it is alleged to have been without consideration, a trust would in that case result in plaintiff’s favor.

But it purports to be upon a valuable consideration, and the receipt of a consideration admitted in a deed, cannot be contradicted for the purpose of raising a resulting trust for the grantor. Washb. R. Prop. Book 2, ch. 3, sec. 17; Graves vs. Graves, 9 Foster N. H. 129; Philbrook vs. Delamo, 29 Maine, 410. Nor is it competent, except to prove fraud or mistake, to show that no consideration was paid, where one is acknowledged in the deed, .for the purpose of destroying its effect and operation. McRea vs. Purmort, 16 Wend. 460 ; Grant vs. Townsend, 2 Hill 554 ; Belden vs. Seymour, 8 Conn. 304 . No mistake is alleged in either deed, except in one particular, not material; nor *156 any fraud, for the representations stated, are not alleged to have been made with any intent to deceive, or for the purpose of inducing’ plaintiff to execute the conveyance. For aught that appears, they were made gratuitously, in entire good faith, and in the honest belief that the defendants would permanently continue to so use the land. Browne Stat. Frauds, secs. 94, 95, 96; 18 Wendell, 608; Evans vs. Folsom, 5 Minnesota, 433. The only material facts, therefore, that the complaint can be taken- to allege respecting this deed are, that the lot was conveyed to defendants by plaintiff for a valuable consideration by them paid therefor, purporting to pass, and effectual to pass the title to them in fee. Rev. Stat. ch. 46, sec. 3, (Minn. Ter.)

In the view we have thus far taken, it follows that there is no ground for the position, that the facts set out in the complaint make out a case of eonstruetive fraud against the defendants, in an attempt to convert, or non-appropriate the property. If the land is theirs in fee, their power to sell it is unrestricted. Gen. Stat. eh. 8, title 2, see. 75, § 3. It is not alleged that they obtained the' title by fraud, and we have seen that fraud cannot be inferred from the fact that the representations stated were made as alleged, nor can it be, from the fact, that the continued use of the land for county purposes would be advantageous to plaintiff in respect of his other property in the neighborhood. It is not alleged that plaintiff bought such other property on the faith of any such representations, and if he had, the injury is not in the sale which he seeks to enjoin, but in the abandonment. Avhich has already taken place, and Avhich he does not seek to have rescinded, but to avail himself of, to obtain the jiroperty from which such removal has taken place.

But the plaintiff says, that the county could have had no apparent public use for the land, except that to which it *157 was appropriated at the time of the execution of the second deed, which he says was sufficiently assured to it under the first deed. If it were, it must have been because said deed sufficiently describes tfie laud •, that we are mistaken in this respect, and that it can be ascertained therefrom that the land now known as lot one, block thirty-two, was meant to be conveyed thereby.

If this be admitted, it will not change the result. There is in that case no dedication, but a grant to the county of a determinable fee, upon valuable consideration, requiring, as a condition precedent to its vesting, the reimbursement to plaintiff and others, of such sums of money as had been given by them towards the building of a court house, not exceeding twelve hundred dollars, and being also upon condition subsequent, to revert to plaintiff in case of the removal of the county seat from Stillwater. The second deed, from the owner of such reversionary rights, being expressed to be upon a valuable consideration, and purporting to pass all such rights, the presumption certainly is, that it was intended to have that effect, and to vest in the defendants a fee simple absolute. Parol evidence is here equally inadmissible, as in the other view of the case, to prove that it was not plaintiff’s intention to do what his deed purports to do, but merely to confirm to defendants that determinable fee, upon condition subsequent, of which they were already seized.

And we cannot concur in the suggestion, that as defendants could have had no other apparent public use for the land, than that they already had, they had no occasion for the second deed, except as a confirmatory one.

The county commissioners, though honestly intending permanently to use the land for the county offices, might nevertheless well desire to have the fee simple. Should the *158 county seat be removed from Stillwater, an event beyond their control, the county, under the first deed, would not only lose the land for which they had relinquished the benefit of the subscription above referred to, but the building which they had erected thereon. Certainly the public were sufficiently interested in an arrangement which would obviate such result, and a deed for such a purpose, would most emphatically be for public use.

The order appealed from is affirmed.