ering its meaning and intent from its language, the office of the writ which it authorizes is not confined to a review of judicial or quasi judicial proceedings, but extends to every case where, in the language of such statute, inferior courts, officers, boards, or tribunals have exceeded their Jurisdiction; and there is no writ of error, appeal, nor, in the judgment of the court, any other plain, speedy, and adequate remedy, subject only to the further limitation of section 5513, that" the review upon this writ cannot be extended further than to determine whether the inferior court, tribunal, board, or officer has regularly pursued the authority of such court, tribunal, board, or officer." Thus the legislature, whether wisely or unwisely it is not within the province of this court to inquire, has, in plain and unequivocal terms, extended the scope of the writ in this state so that it fairly brings before us the record of these proceedings, whether judicial or otherwise. 4. "That the plaintiff has other plain, speedy, and adequate remedy." Upon the argument it was insisted by defendants that the state might appeal. Under section 610, Comp. Laws, appeals may be taken from decisions of the board of county commissioners "upon matters properly before them," and then only, as appears by the opinion of the supreme court in Water-Works Co. v. Hughes Co., 5 Dak. 145, 87 N. W. Rep. 733, when such decision is quasi judicial. Such being the necessary condition and quality of the act and decision of the board, to render it appealable, we should be unwilling to hold, even if there were no other obstacles in the way of an appeal by the state in this case, that such was a plain, speedy, and adequate remedy. In our judgment, it would very greatly lack the element of plainness. They also suggest a writ of prohibition-the statutory contest- and quo warranto, as available and adequate remedies. These remedies might, and undoubtedly would, be serviceable in reaching some of the results that might follow the acts complained of, but it is not perceived how any or all of them could be made available to accomplish the rellef towards which this writ is directed. 5. "A judgment for the plaintiff upon said writ and return would determine in advance the right of franchise of parties not before the court, before any proper case has arisen to be determined in the premises, and its consequence and effect would be to obstruct the right of suffrage, rather than protect it, and to interfere with the administration of public officers, withont sufficient cause." But one question is before this court, and that a legal one. It is sharp and well defined. Did the board of county commissioners of Hughes country, on the 2d day of September, 1890, have lawful authority to establish voting preeinets within the limits of the unorganized countles of Nowlin and Sterling? It is a question which we have already held the state, through its attorney general, has a right to present to this court. The right to present the question carries with it the correlative duty upon our part to answer | lature has made it. The decision of this question will neither create new rights nor destroy any already existing. The right to vote, and the conditions under which such right may be exercised, are fixed by the constitution and the legislature; not by the courts. If the proceedings complained of on the part of the board of county commissioners of Hughes county were extraterritorial they were void, and the court must so declare. To find and hold them valid would not carry the right to vote, where it did not otherwise | exist, and so to find and hold them void would not take away any such existing right. 6. "That the acts complained of were and are legal and valid and within the jurisdiction of the defendants." This goes to and covers the merits of the controversy, and brings us directly to the inquiry, had the board of county commissioners of Hughes county, on the 2d day of September, 1890, authority to establish election precincts, appoint judges of election, and the places for holding such election in the unorganized counties of Nowlin and Sterling? The territorial legislature, by section 1, c. 175, Laws 1887, enacted as follows: "That the counties of * * Sterling and Nowlin, in the territory of Dakota, be, and the same are, hereby attached to the county of Hughes in the territory of Dakota for judicial purposes. In the construction of the statute and its application to the question now under examination, the immediate point of interest is, what did the legislature mean by the expression "for judicial purposes?" It must be remembered that when this law was passed the counties named were entirely within an Indian reservation. The jurisdiction of the territorial government over that country was restricted and lim ited to certain purposes, consistent with the treaty rights of the Indians, but the courts had decided in several cases, notably in Langford v. Monteith, 102 UJ. S. 145, that judicial process, not affecting Indian rights, might run into and be served upon such a reservation; and in March, 1885, congress passed a law making Indians charged with certain offenses committed either within or without such reservation, triable in the territorial courts. But where should such offenses be tried? In what counties were they they indictable? What particular county should have jurisdiction and be authorized to prosecute any particular offense committed in an unorganized county, within the limits of the reservation? These considerations would present reasons why the legislature, in 1887, should deem it advisable and important to place these counties, still within the limits of the reservation, under the judicial jurisdiction of an independent organized county having magistrates. courts, and a grand jury. That they intended so much by the expression "for judicial purposes," is hardly questionable, but did they mean more? A very cursory examination of the acts of the territorial legislature reveals the fact that they did, from time to time, and in many instances, attach unorganized counties to organized counties for different purposes,—some organized county shall, for judicial and times for judicial, sometimes for revenue, | ized into counties as are annexed to any and sometimes for election, purposes, and in several instances have strongly discouraged the interpretation that judicial purposes might include election purposes, by specifically providing for such attachments for both purposes; and in 1881, by chapter 121, the legislature, presumably not regarding the attachment for judicial purposes as sufficient to cover the case, provided specially that such unorganized attached counties should be also so attached for purposes of registration of deeds, mortgages, and other instruments. These repeated acts of the legislature indicate, we think, that they had constantly in mind that unorganized counties might be attached to organized counties for different purposes, as exigency or convenience might suggest, and that attaching for one specified purpose did not include any other purpose. But if this statute is to be construed and its meaning determined by the ordinary rules of construction, then another consideration is important, if not dominant. Among Vattel's rules for the construction of statutes is this: "The reason of the law-that is, the motive which led to making of it-is one of the most certain means of establishing the true sense." Puffendorf expresses the same thought in one of his rules as follows: "That which helps us most in the discovery of the true meaning of the law is the reason of it, or the cause which moved the legislature to enact it." Now, can it be reasonably claimed that in 1887, when the legislature attached Nowlin and Sterling counties to Hughes county for judicial purposes, it also intended to attach such counties for election purposes? As we have before seen, or at least attempted to show, there was a reason for so attaching them for judicial purposes, but what fact or reason could have been then present with the legislature to suggest the importance, or even the propriety of so attaching them for election purposes? The entire Indian reservation, of which these counties formed a part, was a segregated territory, in which no person could acquire any political rights, nor had the legislature power to confer any. The legislature well knew it had no political jurisdiction over that country, and that any attempt to actually make Nowlin and Sterling counties a part of Hughes county for election purposes would be nugatory and void. But it may be urged that the legislature had in contemplation a change in the political status of these counties, contingent upon the extinguishment of Indian rights therein, and while this thought may be entitled to consideration, we do not think we would be justified in going so far to find a reason or a theory, upon which we might hold that the legislature had intended to do what they have not done in terms, when the reason for what they have plainly done is so apparent. But it is further claimed that section 535, Comp. Laws, read in connection with said chapter 175, Laws 1887, recognizes and confirms the right of defendants to so establish polling precincts in Nowlin and Sterling counties. It reads as follows: "Such portions of the territory not organ- | ready expressed, it is the opinion of this We have thus endeavored to cover and express an opinion upon every question presented in the argument. It is a matter of regret to the court, and particularly to the writer, to whom was assigned the duty of preparing this opinion, that the obvious importance of an immediate decision and opinion has precluded a more elaborate treatment of the many questions involved, and such a discussion of them in this opinion as the marked ability and earnestness with which the case was presented on both sides, would seem to demand. Having but the few hours which we might fairly take from the constant demands of the business of the court during term, we have been unable to make as liberal use of authorities as might be expected in an opinion upon the questions discussed. Following the intimations al court, and it is found and adjudged, that the specific acts complained of in the relation of the attorney general, to-wit, the acts and proceedings of the board of county commissioners of Hughes county in establishing election precincts, appointing places for holding the election, and judges of election, within and for the unorganized counties of Nowlin and Sterling, as the same appear by the return of said board, were and are irregular, erroneous, vold, and of no effect, for the reason that said board of county commissioners of Hughes county were without jurisdiction to do and perform said acts within and for said unorganized counties of Nowlin and Sterling. Let formal judgment be entered accordingly. All the judges concur. 1. Evidence not properly preserved cannot, nearly two years after the trial, be made part of the record on appeal, by agreement of counsel, without the concurrence of the trial judge. 2. Under Code Civil Proc. Dak. 1868, by which the distinction between actions at law and suits in equity was abolished, the evidence in a suit to remove a cloud on a title will not be reviewed on appeal, unless embodied in a case made or bill of exceptions. 3. One is not a bona fide purchaser for value, nor entitled as such to precedence over an unre corded conveyance, who, by representing that he is the present owner, and wants a deed to cure defects in the title, obtains one from the former owners, who tell him that they do not claim the land, and give him the deed without consideration, though after its delivery he makes them a present of $10 "to pay for their trouble." 4. Defendant's grantor held a quitclaim deed with notice of a prior unrecorded deed to S. Defendant was told that S. had a power of attorney to locate scrip on the land, and might hold a power to convey it. He did not inquire of S., nor attempt to find him, and it does not appear that he might not have readily applied to him for information. He claims to have applied to others, but does not disclose their names. Held, that the defendant was put on inquiry, which he did not prosecute with diligence, and was charged with knowledge of the unrecorded deed. this and other territories, the Codes adopted therein, which authorized a mingling of common law and chancery jurisdiction in the same proceeding or a uniform course of proceeding in all cases legal and equitable, were repugnant to the organic acts, congress, by an act approved April 7, 1874, removed all such doubts by confirming such Codes, and by authorizing such uniform course of proceeding. The trial in this action was by the court at May term, 1875, and its decision, in writing, was given June 20, 1875. To the decision is appended the following general exception, to wit: "To which finding of facts, conclusions of law, and order of the court, the defendants except." Judgment upon the decision was some time afterwards duly entered. It is to be observed that no further proceedings were had until the notice of appeal was served and filed on 24th of April, 1877, nearly two from the whole of the judment, and brings years after the judgment. The appeal is up the judgment roll proper. And here the first question arises. Counsel for appellants contend that, under the general exception (noted above) to the decision of the court below, and in the absence of a case made or exceptions settled, or any attempt in the district court to re-examine the facts found, this appellate court is bound to receive, and to review, de novo, the mass of uncertified evidence which has been laid before us; and, moreover, that a certain stipulation bearing date the 21st of May, 1877, gives this court jurisdiction so to do. The answer to this is that the mere consent of parties cannot confer jurisdiction, unless in a very few special instances. The appellate powers of this tribunal are fixed by law, and can be exercised only in the modes and channels prescribed by the Codes. No matter what may have been the past practice here or elsewhere, now a uniform course of procedure to secure a review on appeal is plainly marked out, and must be pursued. This means that the same steps requisite to obtain a review in an action purely legal must likewise be taken in a case purely equitable. If the counsel who tried the cause believed the findings were incorrect, or that the evidence was insufficient to justify the decision, the remedy under the Code then exE. G. Wheeler and Edward H. Brackett, isting was simple and obvious. Under it, for appellant. C. J. B. Harris, for appellee. when the trial was by the court, either SHANNON, C. J. The proceedings in this party desiring to review, upon the eviaction, until the appeal, were under the dence appearing upon the trial, a question Code of Civil Procedure of January 10, 1868, of fact or of law could make a case, or by which the distinction between actions exceptions, in like manner as upon a trial at law and suits in equity, and the forms by a jury, except that the judge, in setof all such actions and suits, were abol- tling the case, was required briefly to ished, and but one form of civil action specify the facts found by him, and his was established. The preamble to that conclusions of law. Nothing like this was Code asserts that the distinction between done, or was even attempted to be done. legal and equitable remedies should no No effort of any description was made to longer continue, and that a uniform introduce the evidence, or any part therecourse of proceeding in all cases should of, within the judgment roll. Consequentprevall. Doubts having been entertainedly, such essentials being wanting, there is whether, under the organic acts creating BARNES, J., dissenting. Appeal from district court, Minnehaha county. This case, filled June term, 1877, is now pub. lished by request, with others, in order that the Northwestern Reporter may cover all cases in the Dakota Reports from volume 1, p. 1. nothing before us on this appeal except such papers as the clerk was authorized to attach and file as a judgment roll, to-wit, the summons, pleadings, or copies thereof, and a copy of the judgment, with the findings on the facts and conclusions of law of the judge who determined the cause. And this is And this is | so whether under the old or new Code of Procedure; for in both the constituents of a judgment roll are identical, and the latter also provides for a case or exceptions. But if, after such lapse of time, anything further to remedy omissions was permissible under the present Code, it is sufficient to state that no such step has been taken. Inadvertence or neglect of parties or counsel to properly prepare a case for review is not a matter for which this court has authority to provide a remedy. The law helps the vigilant before those who sleep on their rights. It should furthermore be borne in mind that under both Codes the judge is a recognized entity in making a case, or in settling exceptions. His concurrence or approbation, as a general proposition, is necessary in the formulating of either the one or the other. In his absence, and without his knowledge or consent, attorneys cannot do this for him, especially when nearly two years have run from the termination of a trial. These remarks are naturally suggested by the anomalous proceedings before us; for among the batch of so-called "uncertified evidence" thrust upon our attention, there is a certain portion which, most manifestly, was never offered in the trial court. Altogether, the case, as thus attempted to be made up, very much resembles an agreement to submit facts in controversy to this court in the first instance, which were not heard or determined in the district court. We must, therefore, take the record as it legally comes before us, and ascertain what, if any, errors are in it. The case as thus presented is upon the original report of the judge, and we are to assume the same facts as found by him. The general rule is that every presumption is to be indulged in favor of a judgment; and this court will not look into evidence which is not authenticated to find a fact for the purpose of reversing a judgment. The action was brought to quiet plaintiff's title to the S. E. 4 of section 9, in township 101, of range 49, and to remove a cloud from. his title caused by certain deeds executed and delivered to defendants for said land, and which were by them placed on record before the plaintiff's deeds were recorded. The findings of the judge are that "the land in controversy was entered by what is known as "Indian HalfBreed Scrip," in the name of Jane Titus, at the Vermillion land-office, in December, 1863, and a patent issued therefor by the United States government, bearing date February 1, 1868, which was filed for record in the office of the register of deeds of Minnehaha county, D. T., May 14, 1872. Plaintiff claims title under deed, quitclaim in form, executed by Moses S. Titus and Jane L. Titus, his wife, to Byron M. Smith, dated March 21, 1869, filed for record in Minnehaha county, May 14, 1872; and deed from Byron M. Smith and wife to plaintiff, dated April 7, 1870, and filed for record in Minnehaha county, May, 1875. Defendants claim title under two certain deeds, executed by Jane L. Titus and Moses S. Titus, her husband, in form quitclaim, with special covenants, one dated May 17, 1871, and filed for record May 23, 1871, and the other bearing date August 11, 1871, and filed for record September 18, 1871; and deed from defendant Evans to defendant Burbank, warranty, for the north half of said tract, executed September 2, 1871, and filed for record in Minnehaha county, October 4, 1871." As to the title of the plaintiff, Gress, the judge found "that the chain of title from the general government to plaintiff is complete, and the deed from Byron M. Smith to plaintiff vested in him absolutely the fee-simple title, where it still remains, unless it has been divested by the subsequent conveyances to defendants." And as to these, it is further found that "the deeds from Jane L. Titus and Moses S. Titus to Evans, and from Evans to Burbank, were executed and delivered subsequent to, but recorded before, the deeds to Smith and from Smith to plaintiff." And this, from the pleadings themselves, is the substantial paramount point in the whole controversy. The complaint substantially alleges fraudulent designs and intentions on the part of the defendants in procuring and recording their deeds, and charges that before the dates of their deeds they had full, complete, and actual notice of the prior unrecorded deed from the Tituses to Smith. The defendants in their answer deny all fraudulent purposes, and assert that they were purchasers in good faith, and for a valuable consideration, and had no notice, either actual or constructive, and claim that they should be protected. The defendants having, admittedly, their deeds first duly recorded, the direct and vital issue before the trial court was, were the defendants purchasers in good faith, and for a valuable consideration? Had they notice either actual or constructive? Upon this issue the findings are that "the deed from Jane L. and M. S. Titus to Evans, dated May 17, 1871, as before stated, is in form a quitclaim,- by these presents grant, bargain, sell, release and quitclaim all their right, title, interest, claim, or demand. To have and to hold the above quitclaimed premises * so that neither the said party of the first part, their heirs or assigns, shall have any right, title, or interest in and to the aforesaid premises." "The second deed to Evans, dated August 11, 1871, is the same in form, with the exception of the covenants which are as follows: 'and the said party of the first part * doth covenant with the said party of the second part *** * that they have not made, done, or executed, or suffered any act or thing whatsoever whereby the above premises, or any part thereof, now are, or at any time hereafter shall or may be, imperiled, charged, or incumbered in any manner whatsoever." The next impor tant finding is "that Evans was not a purchaser in good faith, but that he obtained his deed by fraud and misrepresentation." And again that "it is disclosed by the evidence that Mr. and Mrs. Titus were induced to make this deed by the representations of Evans that he was the person entitled to it; that he was the owner of the land but that there was some defect in his title which he wished * * * * remedied," etc. And furthermore, it is found that "when he [Evans] applied to Mr. Titus for a deed he was told by Titus that they had sold the scrip, and that they did not claim any right in the land; that they considered the land sold so far as they were concerned." To this the judge immediately adds as follows: "Ev- | ans knew he was not the purchaser of the | scrip, or bis assignee, and he made no inquiry as to who had purchased the scrip, | or whether they had previously executed a deed." There is another finding relative to non-inquiry from Smith which concludes by stating that Evans “at no time asked him [Smith] if he had received a deed, although from previous conversations he must have known that Smith had, or claimed to have, some interest in the land." But as to the defendant Evans there is yet another significant finding. which is as follows: “The evidence clearly establishes the fact that he [Evans] paid no consideration whatever. No consider ation was mentioned or alluded to. After the deed was executed and delivered, Evans made a present to Mrs. Titus of ten dollars, as he then stated, to compensate them for their trouble. It was neither given nor received as a consideration for the deed. The grantors neither asked nor expected anything, but made the deed to❘ Evans because they supposed him to be the party entitled to it, and for the purpose of curing some defect in his title." Such are the prominent findings of fact in relation to the defendant Evans, on the issue of his being a purchaser in good faith, and for a valuable consideration. And we must next turn attention to the_findings regarding the other defendant, Burbank. As to him, the judge has found as follows, to-wit: "He [Burbank] admits that he was told that Smith had a power of attorney from Titus and husband to locate certain scrip upon the land in controversy, and might hold a power of attorney to convey said land, or a deed to the same." It does not appear that he made any effort to find out anything further in relation to the matter, except to examine the records. He did not inquire of Smith, or attempt to ascertain his address or anything of the kind. It does not even appear that he was ignorant of Smith's whereabouts, or that he might not have readily applied to him for information. He claims to have inquired of others, but their names he does not disclose. From these findings the trial court deduced the conclusions that "Burbank cannot stand as a bona fide purchaser without notice," and that Evans was in the same position; and that “the equities of this cause are with the plaintiff, and that the deeds to defendants are fraudulent and void as against him." Is there any error in this? Our Civil Code makes void a conveyance not recorded, only as against a subsequent purchaser of the same property, or any part thereof, in good faith and for a valuable consideration. See Civil Code of 1866, § 530; Rev. Codes, p. 341, § 671. Actual notice of a prior unrecorded conveyance, or of any fitle, legal or equitable, to the premises, or knowledge and notice of any facts which should put a prudent | man upon inquiry, impeaches the good faith of the subsequent purchaser. There should be proof of actual notice of prior title or prior equities, or circumstances tending to prove such prior rights, which affect the conscience of the subsequent purchaser. Actual notice, of itself, impeaches the subsequent conveyance. Proof of circumstances short of actual notice which should put a prudent man up on inquiry, authorize the court or jury to infer and find actual notice. Or to express it exactly, good faith consists in an honest intention to abstain from taking any unconscientious advantage of another, even through the forms or technicalities of law, together with an absence of all infor. mation or belief of facts which would render the transaction unconscientious. And notice is either actual or constructive. Actual notice consists in express information of a fact. Constructive notice is notice imputed by the law to a person not having actual notice; and every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, and who omits to make such inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself. Civil Code, 1866, §§ 2007-2011; Rev. Codes, pp. 504-505, §§ 2105-2109. Viewed in the light of this law on the subject, from the findings, clearly the plaintiff's unrecorded conveyances were not void as against Evans; and, as the admissions of Burbank are to be taken most strongly against himself, he must be considered as having had notice of circumstances sufficient to put a prudent man upon inquiry, and, having omitted to make such inquiry with reasonable diligence, he must be deemed to have had constructive notice of the fact itself. The learned judge who tried the issues arrived at a conclusion of law which, in a case like the present, so pregnant with other overshadowing circumstances, it is unnecessary now to examine or determine. He was of opinion that by a deed which (like those to Evans) simply purports to pass "the right, title, interest, claim, or demand" of the grantor, the, grantee does not obtain any thing which the grantor had previously parted with, although the subsequent deed was first recorded; that such grantee cannot be regarded as a bona fide purchaser without notice; that, therefore, Burbank took nothing under his deed from Evans, as Evans had nothing to convey, and that the terms of the quitclaim conveyances to Evans were, of themselves, notice to both Evans and Burbank. Brown v. Jackson, 3 Wheat. 450; Oliver v. Piatt, 3 How.396; May v. Le Claire, 11 Wall. 232; Smith's Heirs v. Bank, 21 Ala. 125; Rodgers v. Burchard, 34 Tex. 441; Bragg v. Paulk, 42 Me. 502; Walker v. Lincoln, 45 Me. 67; Doe v. Reed, 4 Scam. 117: Coe v. Persons Unknown, 43 Me. 432; Martin v. Brown, 4 Minn. 282, (Gil. 201;) Everest v. Ferris, 16 Minn. 26, (Gil. 14;) Marshall v. Roberts, 18 Minn. 495, (Gil. 365.) But see Graff v. Middleton, 43 Cal. 341; Jackson v. Fish, 10 Johns. 456; 3 Washb. Real Prop. 314, 417: Webster v. Webster, 33 N. H. 22; Fairley v. Fairley, 34 Miss. 18; Mills v. Catlin, 22 Vt. 104; Funk v. Cresswell, 5 Iowa 66; |