27 S.D. 429 | S.D. | 1911
This action was tried before a referee who decided that the plaintiff is the owner and entitled to possession of the quarter section of land described in the complaint. Judgment having been according entered and a new trial refused, the defendant appealed.
[i] The land in controversy was formerly owned by E. S-Waterbury, who acquired title from the United States. Plaintiff’s claim of ownership'rests on a sheriff’s deed, resulting from an execution sale under a judgment against the patentee and a deed from S. A. Ramsey, the grantee in the sheriff’s deed. Defendant’s claim of ownership rests on an unrecorded deed from the patentee conveying three-fourths of the land, and a contract with the patentee to convey the other fourth, executed and entered into- prior to the rendition of the judgment against his grantor. To support his claims the .plaintiff offered the -sheriff’s deed, which was objected to on the ground “that no proper foundation has been laid for the same, no evidence whatever of any judgment upon which a judicial sale has been made; no showing whatever that proper proceedings were had by the sheriff subsequent to the entry of said judgment, if any was ever entered, no showing that the time for redemption had expired from -the time of said judicial sale, if any,
[2] Plaintiff also offered “a certified copy of a decree entered in the case of E. S. Waterbury v. S. A. Ramsey, in the circuit •court of Jerauld county, purporting to quiet the title of S. A. Ramsey, as against E. S. Waterbury to the land in question, entered on the 8th day of October, 1901, and being duly certified by the clerk of the circuit court of Jerauld county,” which was objected to “as incompetent and immaterial, and in no way binding upon the defendant in this action, he not being a party to said action in which said decree was rendered.” This objection should have been sustained as the evidence was irrelevant and wholly immaterial at the time it was offered. But the error was not prejudicial as the fact which it tended to prove was disclosed by the cross-examination of E. S. Waterbury, and it was relevant and material to the issue of estoppel hereafter considered.
[3] E. S. Waterbury, the patentee, called as a witness for the •defendant, having testified concerning the execution of the deed .and contract relied on by the defendant, was asked this question:
[4] Defendant offered evidence tending to prove the execution and delivery, for a valuable consideration, in April, 1887, of a deed to him from the patentee, conveying three-fourths of the land, signed by the patentee and wife, which was not acknowledged or recorded, and which was subsequently lost or destroyed. He also offered evidence tending to prove a contract with the patentee, entered into in April, 1887, to convey the remaining fourth; that he had performed all the conditions of such contract; that he had immediately entered into possession under such conveyance and contract, and that he was in actual possession when the judgment against his grantor was rendered, when the land was sold on execution, and when it was purchased by the plaintiff. As to whether a deed to the defendant was executed and delivered and a contract to convey entered into and performed, as alleged by the defendant, the decision of the referee is indefinite and uncertain. But as he did not find against the defendant on these material issues they were determined in defendant’s favor or not determined at all. As the latter conclusion would necessitate a reversal (unless the defendant is estopped from asserting title), the referee having been requested to find thereon, it will be assumed that the unrecorded deed and oral contract were executed, dlivered, and performed. “An unrecorded instrument is valid as.
[6j The contention that the defendant should not assert title because he failed to do so in a conversation with the plaintiff when the latter was about to purchase it, is not tenable. The only facts stated in the decision which tend to support it are these: “That during the time that said plaintiff was negotiating with the said S. A. Ramsey for the purchase of said lands, said plaintiff visited the lands and inspected the premises, and that he met defendant W. E. Waterbury and told him that he was about to purchase said lands, whereupon the defendant told the plaintiff that
The' contention that defendant is estopped from asserting ownership because he failed to do so during the litigation between E. S. Waterbury, his grantor, and S. A. Ramsey, the plaintiff’s grantor, is also untenable. The judgment upon which plaintiff’s claim of title is founded was rendered May 8, 1890, in an action wherein E. S. Waterbury and others were defendants and to which the defendant in the present action was not a party. Title to the land in controversy was quieted in S. A. Ramsey, plaintiff’s grantor, by a decree of the circuit court October 8, 1901, in an action wherein E. S. Waterbury was plaintiff, S. A. Ramsey was defendant, and to which the defendant in the present action was not a party. The referee found that during all the time these actions were pending the defendant, who is the son of E. S. Waterbury, “was conversant with said proceedings” and never asserted any right, title or interest in or to the land. “Under the rule that he has the burden of proof who has the affirmative of the issue, the burden of proof is on the party alleging and relying on an estoppel to establish all the facts necessary to constitute it, subject, of course, to the proper presumptions which may be indulged under the facts of the particular case.” 16 Cyc. 811. As the law did not require notice to the occupant of the land of any step in either of the actions to which he was not a party, there is no presumption that such notice was given. [7] The fact that the