12 S.D. 191 | S.D. | 1899
This is an action brought under the provisions of Section 5-119, Comp. Laws, which reads as follows: ‘‘An action may be brought by any person against any other who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim.”
The plaintiffs allege in their complaint that they are the owner's and in exclusive possession of certain lots in the city of Sioux Falls, constituting the property generally known as the “Commercial House”; that the plaintiffs are the owners in fee, and have been for many years past, of the said premises; that the defendant unjustly claims an estate or interest in said property adverse to the said plaintiffs, and that the claim of said defendant is without any right whatever, and plaintiffs pray that the defendant may be required to set forth the nature of his claim, etc., and that all adverse claims of the defendant may be determined by a decree of this court; that it may be adjudged that the defendant has no estate or interest whatever in or to the said land and premises; and that it be decreed and adjudged that the title of plaintiffs is good and valid, and that the defendant be forever enjoined and debarred from asserting any claim whatever in or to the said land and premises adverse to the plaintiffs. The defendant in his answer, after denying certain allegations of the complaint, alleges, in substance, as follows: That on the 12th day of April, 1889, he secured a
It was admitted on the trial that on the 20th day of December, 1888, the said David P. Wyman was the owner in fee of the property in controversy. The plaintiff, to maintain his title to the property, introduced a certain deed, bearing date December 20, 1888, by which it appeared that David P. Wyman and Mary E. Wynan , his wife, as parties of the first part, conveyed to Thomas W. Tasker and Henry Westover all and
The defendant and appellant then introduced "evidence tending to sustain the allegations of his answer. The appellant contends that the respondents showed no present, threatened, or probable injury which might result from defendant’s certificate of sale, and that the certificate of sale was void upon its face. We think there is no merit in this contention. The certificate of sale constituted an interest of appellant in the property adverse to the respondents. Clark v. Darlington, 7 S. D. 148, 63 N. W. 771. This action, as we understand it, was not brought under Sections 4644, 4645, Comp. Laws, and hence the provisions of those sections are not applicable. But, could the provisions of Section 4645 be made appplicable to actions like the one at bar, the contention of the appellant is not tenable, for the reason that the certificate of sale is not void upon its face. It being admitted that the title of the property in controversy was in David F. Wyman, the husband of Mary E. Wyman, and that ho died in December, 1888, the said Mary E. Wyman presumptively would be entitled to one-third of the property. To defeat such claim, it would be necessary to show
It is further contended that the deed from the trustees to Brace was void, for the reason that the deed was based upon a prior instrument, by which the trustees agreed to convey to Brace .in exchange for certain New York property owned by Brace; but we are of the opinion that, this contention is not tenable for two reasons: First, the deed to the trustees authorized the trustees to sell, transfer, or otherwise dispose of the said property in such manner as might be for the best interests for the family of David F. Wyman; secondly, the appellant herein is not in a position to question the validity of the deed from the trustees to Brace. If the deed from Wyman to the trustees was valid, then the appellant has no inte'rest'in the property. The validity of the deed from the trustees to Brace can only properly be questioned by the beneficiaries under the deed.
Appellant further contends that thedeed executed by David F. Wyman to the trustees, Tasker and Westover, was in legal effect a will, and could not take effect until the death of the said David F. Wyman. But we are of the opinion that the trust deed in this case comes within the provisions of Section 2798, Comp. Laws, authorizing the creation of express trusts for the purpose of selling real property, and applying or disposing of the proceeds in accordance with the instrument ere ating the trust, and is not in effect, a will. The effect of such
The title of the property being absolute in the trustees, Mrs. Wyman had no interest therein that could legally be sold on execution. All the interest she acquired in the property was the right to enforce the performance of the trust on the part of the trustees; that is, when the property should be sold and converted into money, and the debts of the said David F. Wyman paid, to have the money received for the property divided among the heirs, as directed in the said deed of trust While, therefore, the sale of the property under the judgment of the appellant would fend to cast a cloud upon the title of the respondents, it is nevertheless a claim without right, and should not be permitted to stand as against the title of the re