5 S.D. 169 | S.D. | 1894
The questions in this case will be as well understood from a brief statement of the salient facts as by a reproduction of the pleadings; Plaintiff (respondent here) brought the action in ejectment to recover possession of a lot in the city
Defendant’s contention was and. is that, as the deed could only be issued upon the existence of certain prerequisite conditions, these conditions were, in an essential sense, jurisdictional, and that the deed was only admissible after it was shown that such conditions existed. The plaintiff, on the other hand, contended that in determining who was entitled to a deed, and in making the same, as the result of such determination, the county judge acted judicially, and the correctness of his decision could not be questioned collaterally. We think the deed was admissible, not on the ground that its allowance was in the nature of a judicial award by the county judge, and therefore unassailable collaterally, but on the ground that, the law having allowed him to issue the deed only if certain prerequisites had been complied with, it will be presumed that he did his duty, and that the conditions precedent had been performed.
The patent from the United States to the county judge of Lawrence county, and his successors in office, conveying this lot and others in trust, was already in evidence; and this deed, regular upon its face, from the county judge, as trustee, showed a prima facie title in Goldberg. We cannot, however, agree with respondent’s counsel that Goldberg’s title, as evidenced by this deed was unassailable, except by a direct and independent action to set it aside. It is only when certain conditions pre-exist that the trustee, whether county judge or municipal officer, has the right or authority to convey. Because the rule is that public officers generally observe, rather than violate, the law, the presumption is that he did not deed in vio - lation of law, but only when, and to whom, he ought to deed; but, notwithstanding such presumption, we think it was competent for Kidd, in an action for his eviction by Goldberg on the strength of his deed, to plead in defense, and show, that such prerequisite condition did not in fact exist, and that consequently the county judge had no authority to make such deed; in other words, to plead and show the very things that;
But, assuming that the action of the trustee awarding and making the deed under the townsite law is, in general, quasi judicial, as held in Territory v. Nowlin, 3 Dak. 349, 20 N. Y. 430, still the decision, in any case, can only have judicial quality when it is the result of a judicial inquiry upon a matter then subject to judicial investigation. In this case, it appears the
We now reach the only point in the case which can, as it seems to us, present very serious difficulty. The facts which defendant Kidd pleaded, and presumably would have proved, were, in effect, that when the townsite was first entered the lot in question was actually occupied by Miller, McPherson & Lake and that they continued- to be the occupants thereof until some time after the entry was finally allowed and confirmed; that thereafter they conveyed their rights in and to said lot, as occupants thereof, to Green & Finley, who in turn conveyed - in the same manner, to defendant Kidd. The right of an occupant to thus transfer his interest to another has been often recognized; and by Section 1171 of our Compiled Laws, it is provided that in the execution of his trust the county judge may deed to the assigns of such claimant. Appellant’s contention is that when the entry was made, in 1877, it inured to the benefit of the then occupants, they becoming at once the equitable owners; that the county judge took and held the legal title simply as their trustee, and it was not in the power of the territorial legislature to subsequently add new conditions, upon which their ownership should depend. The act of congress under which this townsite was entered authorized the county judge “to enter * * * the land so settled and occupied in trust for the several use and benefit of the occupants thereof according to their respective interests; the execution of which trust as to the disposal of the lots in such town, and the proceeds of the sale thereof, to be conducted under such regulations as may be prescribed by the legislative authority of the state or territory in which the same may be situated. ” This was the law when, and under which, this townsite was entered. It was entered in 1878. The county judge took the legal title to this lot in trust for defendant’s assignors. Assuming, as we must, in disposing of the questions now before qs, that the
It was doubtless competent for the legislature to prescribe reguiations by which the county judge, as trustee, might and should determine to whom he should make conveyance of the legal title; and an actual occupant, although the equitable owner, could not obtain the legal title except in pursuance of such regulations. But, under the authority to make such regulations for such purpose, was it competent for the legislature to say that the equitable owner, continuing in open and uninterrupted possession, should forfeit his rights under the congressional law unless, within a limited number of days, he put himself in position to receive the full legal title? Failure to file a claimant’s statement might be taken as evidence of his intention to abandon, but it could not so operate here; for the defendant and his assignors have been in actual and constant possession since prior to the entry of the townsite, and have made valuable improvements on the lot. The law of congress prescribes no time within which the county judge’s trust is to be discharged, and does not — expressly, at least — impose any obligation upon the occupant of a lot to apply for and take the legal title thereto. It simply makes the county judge trustee for the occupant,- as equitable owner; and for the legislature to say that, no matter what hindering causes intervene, the vested equitable rights of the cestui que trust are absolutely and forever forfeited by IBs failure, for 90 days, — not from actual
Defendant’s grantors were, as stated in the answer, in actual occupation of this lot when the townsite entry was made, in June, 1878, and contributed to the expense thereof. Their equitable interest in, and ownership of, the lot, became at once a vested right, subject only to such regulations as the local legislature might properly make under the authority referred to. While they so continued in such occupation and ownership, and while it was still such vested equitable right, this territorial statute was passed, barring their right of claiming or recovering such lot unless the verified statement provided for in such statute was made within 90 days. We do not now undertake to define the legal effect of this provision as a statute of limitation,' further than to say that if, by it, it was intended that a failure, for 90 days, to file such statement as would entitle an occupant to a conveyance of the legal title should have the effect of destroying the occupant’s pre-existing equitable
Upon the facts stated in the answer, Kidd became the