This case was tried in the court of original jurisdiction without a jury, upon the amended and supplemental answers of Byron M. Smith, and the replies thereto of Gale, Grigsby, and McKennan, and was appealed to the supreme court of the territory, and thence to this court, upon exceptions of the defendant Smith to certain proceedingns upon said trial.
1. Error is alleged in the refusal of the court to permit Margaret Frazier to file an intervening complaint, and be joined with defendant Smith as a necessary party to the complete determination of the controversy. By section 89 of the Dakota Code of Civil Procedure, respecting parties to civil actions, 'the court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but, when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in.' And by section 90: 'Any person may, before the trial, intervene, in any action or proceeding, who has an interest in the matter in litigation, in the success of either party, or an interest against both. an intervention takes place when a third person is permitted to become a party to an action or proceedins between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding any thing adversely to both the plaintiff and the defendant, and is made by complaint, setting forth the grounds upon which the intervention rests, filed by leave of the court,' etc. This complaint set forth, in substance, the issue of the patent to the complainant in 1864, and the conveyance to Hodgdon, May 29, 1872, and averred that Hodgdon had no knowledge or notice that any person was then in possession of the lands; denied that any person was in possession thereof; further alleged the execution of the deed from Hodgdon to Smith of June 20, 1874; and averred that plaintiff had falsely claimed that he or his wife were possession of the and, and that by reason thereof the deeds to Hodgdon and Smith were void. And 'this complainant avers that in case said Smith does not now have the legal title to said land, that the legal title to the whole thereof is now in this complainant, and that she now holds the same for the use and benefit of said Smith, his heirs and assigns, and for no one else.'