22 S.D. 301 | S.D. | 1908
Lead Opinion
This is an' appeal by the plaintiff from a judgment entered in favor of the defendant Schnauber. The complaint is in the usual form, alleging: That the plaintiff is the owner of the premises in controversy; that the defendants assert a claim to the premises or of some interest therein; that said claim is without right; that for six years prior to the commencement of this action the defendants have witheld, and do withhold, the premises from the possession of the plaintiff; -and that the value of the rents •-and profits of the same were '$300 per year. And the plaintiff demands judgment that the defendants be .required to set forth the nature of their claims, that the -same may be determined by this court, that they be adjudged to- have no- estate or interest in said lands, that the title of the plaintiff is valid, that she be adjudged to be entitled to the possession of -the property, that the defendant
The court finds, in substance, (that in March, 1872, one Pettit made final proof upon the land described in the complaint, and that on January 30, 1874, a United 'States patent was issued to said Pettit therefor. The court then proceeds to find certain facts showing that the title of said Pettit became vested in the plaintiff. The court further (finds: That in March, 1883, the then treasurer of Yankton county executed a tax deed of said land to Ernst Hecht, a copy of which is annexed to the finding; that in the same month said deed was recorded (in the office of the register of deeds of said county; thait thereafter in January, 1894, the said Ernst Hecht executed to the defendant Ered Schnauber a quitclaim deed of said land; that up to the time iof the execution of said deed said Hecht had been a .resident of Illinois; that defendant Schnau-ber and his grantor, Hecht, paid faxes upon said lands from the year 1874 to 1900; that is,aid Ernst Plecht, upon procuring the tax deed before referred to, paid the back taxes; that in the year 1874 the market value of the property in controversy was $350; that by reason of the construction of railroads Over the same, the value of the land was at the time of the commencement of this action of the value of $4,500, exclusive of the property used by the railroad companies and the improvements thereon; that the rents and profits (of the premises occupied by defendants Hecht and Schnauber for the years including 1901 were the sum of $692.37; that neither the plaintiff nor her grantors exercised any acts whatever with reference to said property, paid no taxes thereon, or offered to pay the same, from the year 1873 .until the commencement of this action; that the defendant Schnauber, pripr to the com-
The errors assigned are: (1) '“that the court erred in its conclusion of law that plaintiff’s complaint should be dismissed; ‘ (2) the court erred in its conclusion that judgment should be rendered against the plaintiff and in favor of 'the defendant Schnauber quieting his title to the land involved in this action; and (3) the court erred ¡in rendering judgment against plaintiff and in favor of the, defendant ^Schnauber.” The respondents served and filed an additional abstract, in which it sets out in full the -tax deed held by the court to be void upon its face, and which is not-contained in the original abstract, .and respondent ¡contends that said tax deed
It is contended by the appellant: That as this was an action at law, and not in equity, die court is governed solely by the 20-year statute of limitations applicable to real property, and the question of laches does not arise in this action; that, not being an equitable 'action, the 10-year statute of limitations has no application ; that when the defqndant Schnauber received and accepted the amount of taxes paid to him with -interest, and retained the same, his lien on the property rwas extinguished, and there being no evidence proving, or tending to prove, that any improvements made by him upon the property were made in good faith, he could not recover for such improvements. The counsel for respondent Schnau-ber insists: That the action is one in equity, and not at law; that if the action is not one 'in equity, but is to be regarded as a legal action, laches, under modern authorities, is applicable to the case at bar; that the receipt ,and retention of the money received for
It does not affirmatively appear from the conclusions of law of the court upon what grounds it placed its decision, but in view of the Ifact that the court held the tax deed under which the defendant Schnauber claimed void on its face, and there was no bar of the statute of limitations applicable to the case, the decision of the court must have been based upon the ground of laches on the part of the plaintiff and her grantors, in failing to assert their title to the premises for a period of more than 20 years. For the purpose therefore of determining whether or not the ’doctrine of laches is applicable to this case, it is necessary to- determine whether or not the action is in the nature of a legal or equitable action, for, if it is a -legal action, the doctrine of la,ches does not apply, as that doctrine is only applicable to equitable actions. McFarlane v. Grover, 70 Ark. 371, 69 S. W. 56, 91 Am. St. Rep. 84; Wilson v. Nichols, 72 Conn. 173, 43 Atl. 1052; Bank v. Baker, 176 Mass. 294, 57 N. E. 603; Wood, Lim. § 60, note “a.”
This action was instituted under the provisions of section 675 of the Revised Code of Civil Procedure, which provides as follows: “An action may be brought by any person against another who claims an estate -or interest in real property adverse to' him, for the purpose of 'determining such adverse claim.” This section was evidently designed as a substitute for the old action formerly known as ejectment and the equitable action to quiet title, and is broader and more .comprehensive than either of those actions. The general purpose and effect of this statute is to extend the remedy to- cases in .which, under the rules of equity, no relief could be had, either because the adverse claim was not ¡such as to constitute a technical cloud upon the title, or because the plaintiff was not in a position to invoke tire equitable jurisdiction. 17 Enc. PI, '& Pr. 290. It also extends the remedy under the old action of ejectment, as that action could only be maintained when the plaintiff was' out of possession, and the defendant in possession; -but under this provision of the
While (the case at bar was tried by the court without a jury, probably by stipulation of the parties, as no question is made as to the action of the có-urt in trying the case without a jury, still the -cases above cited ’are in point as shownng that, when the action is to recover .possession of real property, it is in the nature of an action at law, and not in equity, and it necessarily must be so, for the reason that an -action in equity' could not have been maintained under the old equity system -to- quiet title, as the plaintiff in such an action was required to allege and show that he had no remedy at law, and where the plaintiff was out of possession he clearly would have 'had a remedy (at law-under the old action of ejectment. In the case at bar the defendant Schnauber claimed the ¡property by virtue of his alleged title under his tax deed, and not by virtue of any euita-ble title. Hence either party to this action -was entitled to a trial by jury. This court, in the case of Sykes v. First National Bank, 2 S. D. 242, 49 N. W. 1058, held that: “While the Wrd n23hspiyupuviiyfob urinavocwoffR-mS etao-in shrdlu cmfwyp distinctions in the forms of. actions are abolished, law and equity, as two distinct systems,'still remain, and that the facts stated in the complaint and the subject-matter of the action, must determine whether the action is one 'at law or in equity.” And the court in its opinion, after quoting .the 'section abolishing the distinction between actions -at law and suits in equity, says: “The distinction therefore in the forms of action is swept away by this section. Law
In our view of this case the foreclosure of the mortgage by Edmonds and the repayment of the taxes and interest to Schnau-ber paid by him and his gr.antor, Hecht, in no' manner affects the rights qf the parties to this action. 'As Plecht, Schnauber’s grantor, w¡as found by the court to be a resident of 'Illinois, he was presumptively absent from this state at the time plaintiff’s cause of action accrued, and remained so absent from the state until he -conveyed ithe property to Schnauber. Hence the plaintiff’s cause of action was not barred by the 20-year statute of limitations. Our conclusion therefore is th;at the court erred in its judgment dismissing the plaintiff’s action and quieting the title of Schnauber
The judgment of the circuit court is therefore reversed, and a new trial granted.
Concurrence Opinion
(concurring). Respondent Schnauber’s. tax deed having been treated by the trial court as void on its face, it should be so treated for the purposes of this appeal, not, perhaps, beqause respondents failed to appeal, but because any other course manifestly would be unfair to the plaintiff. The view of the trial court as to the form ojf the deed rendered unnecessary, if not improper any further attack upon the tax proceedings. To- now af firm its judgment against the plaintiff, on the theory that the deed was prima facie sufficient to sustain respondent’s claim of title, would, in effect, be to deprive the plaintiff of her property without any opportunity of litigating the tax proceedings. It is a case which forcefully illustrates the wisdom of the rule requiring an appellate court to adhere to the theory upon which a cause is tried in the court below. In all other respects I concur in the foregoing opinion.