Gordon v. White

145 N.W. 439 | S.D. | 1914

GATES, J.

This is an election contest. The cause was advanced for hearing under the provisions -of section 1997, Pol. Code; Oil Maroh 7, 1913, a petition signed by 31 persons was filed with the city auditor of the city of Yankton, requesting- that the question of granting permits to sell intoxicating liquors at retail in said city be submitted at the forthcoming annual city election. Chapter 254 of the Laws of 1913 requires such petition to foe signed by 25 legal freeholder voters. In so far as said act applies to municipalities, and in so. -far as the issues in the present case are concerned, said act defines the word “freeholder” as follows: “Provided: That 'freeholder’ as used in this act shall -be defined to be" one who -own-s the legal title to, or owns an undivided share or interest in at least one entire lot or parcel of ground within the township, town or city, where such vote is to be taken, which lot or parcel of ground shall be of the size Commonly recognized as a full lot in the town or city in which such vote is to- be taken as shown by tile official- plat of said town or. -city or its additions.” It was found by the tidal court that nine of such- -.signers were 11-ot qualified under the provisions- of said act to- sign said petition. It was therefore held that the election held in- pursuance of -said petition was invalid because the requisite number of 25 signers was lacking. It is conceded by appellants that five of -s-uch signers were disqualified. The legality of such petition, therefore, depends upon whether any three of the -following named persons were qualified signers, viz.: D, D. Gros-s, W. E. Heaton, Emil Goetz, and E. J. Dowling. The qualifications of Mr. Heaton as a signer are raised by an assignment -of error which alleges the inf-sufficiency of the evidence to sustain the findings. The qualifications of the other three 'depend upon the interpretation of said act of the Legislature.

[1] It is conceded that Mr. Gross owned certain brick b-uild1ings in the city of Yankton, and that he had a leasehold interest in the premises- upon which -they -were situate, and -that he had no interest in any other real estate in said city. This clearly -did not make him a freeholder within, the meaning- of chapter 254, Laws 1913, nor did the fact that at the termination of the lease the owner of the ground was obligated to- pay to Gross the appraised value of the buildings.

[2] As to the qualifications of Mr. Heaton- the court found the facts to -be as follows:

“XIV. That 'AY. E. Heaton, one of the persons who- signed said petition, at the time he signed- the same, -an-d for more than one year immediately prior 'thereto, owned the legal title to- the north' h-alf of lot 5 in block 20 in th-a-t part of the city -of Yankton known an-d platted as ‘Lower Yankton;’ that eac-h of the lot's in said bl-o-ck 20 is 44 feet north anil south by 150 feet east and- west according to the recorded -p-la-t of ‘Lower Yankton’ in the office of the register of deeds of said- Yankton county; -that -a great majority o-f the lots- in Low-er Yankton, .according to said recorded plat, are 44x150 feet in size. Some of the lots in said ‘Lower Yankton’ are 50x150 feet in -size, and some of the lots are less than 44x150 feet in size, and the}'- vary in size.

“XV. That said AY. E. Heaton at th:e t-ime he -signed said petition a-ls-o ha-d an -interest in lots 6, 7, 8, an-d 9 and'the -south half of lot 5 in block 20 in. that part o-f th-e city -of Yankton known and1 platted a's Lower Yankton, which interest .was- based on the following facts: That some time in the summer of 1910, prior to the month of September -in said year, said AY. E. Heat-on made a written contract with Rebecca J. McVay, who then- -owned s-ai-d 1-ots, whereby he -agreed -to- purchase th-e -same from -her and she agreed to sell .and c-on-vey the same to him for -th-e consideration of $5,000, $1,000 of which wa-s paid at s-aid time and a written contract wa-s entered into, which provided that t-h-e balance of the purchase -price for said lots should be paid in fo-ur equal annual installments, and that said Rebecca J. McVay should- furnish a deed for said lo-ts to said W. E. Heato-n upon -the. full payment -of the -purchase price, an-d said contract further provided that s-aid Heato-n shoul-d have the right to pay -the -balance -of th-e- purchase -price and obtain a deed for said lots at any time; that' after the making -of -said -contract an -oral contract was made by -s-aid AY. E. Heaton with one George AVils-on, th-e son-in-law of Rebecca J. McVay, and Chet McVay, a -son of said Rebecca J. McVay, or with b-o-th of them, the terms of said oral -contract n-o-t being proven; that after the making of s-aid oral contract, s-aid Rebecc-a J. McVay, in the month -o-f September, 1910, made and. acknowledged a warranty deed to said AY. E. H-eat-o-n for said lots, the acknowledgement being' taken before one Gc-rbru.de E- Tripp, who at that time was an employe in the bank of which said W. E. Heaton was, and ever since has 'been, cashier; that said deed, after its execution and. acknow'ledgemnt was placel in the hands of said Heaton, who retained the same for about one day, when the same was by him placed in the hands' of one George Wilson, who shortly thereafter moved to Oregon, taking said deed with him; that in -the month of May, 1913, said deed was returned by said Wilson to the 'bank of which said Heaton was then and is now cashier, as the result of some correspondence between said Heaton and said Wilson, and said Heaton, after the receipt of said deed by said .bank, paid to said bank, to be remitted to said Wilson, something over $2,000, whereupon said deed was given to- said Heaton, and he then had the same recorded in the office of the register of deeds of Yankton county, S. D., and said deed was not, prior to that time, delivered to said Heaton so as to pass the legal title to said lots to him; that said Heaton since the fall of 1910 has been in the exclusive possession of all said lots, and ha-s used the same and paid all taxes thereon, and the said Heaton did not own or have any interest in any other real estate in said city of Yank-ton at the time he signed said petition; that ;by the terms of the original written contract between the said Rebecca J. McVay and W. E. Heaton with reference to 'said lot-s, the deed thereof was not to be delivered to him until the consideration, $5,000, was fully paid, and that said consideration was not so paid, and that said deed was not in fact delivered to him until after-the signing of the petition involved herein.”

There is no dispute as to the evidence. I-t is ■appellant’s contention that the deed, having been in Heaton’s possession for one day in September, 19x0, was in fact -delivered to him at that time. It is respondent’s -contention that there was no delivery of the deed until May, 1913. A -review of the evidence does not leave it entirely clear in -our minds- -why Heaton had- the deed- in bis possession in September, 1910, but we can find nothing in, the record which would indicate that it was intended- that -such possession of the deed should be deemed to constitute a delivery of it. We think the fair inference from the testimony is -that Heaton in his capacity as an 'officer of a bank had the deed in his possession at that time, and that it was not intended -as a delivery. We can find- nothing i-n the record that takes the' case out of the well-es-tab-fished rule that tíre findings of the trial court will not be set aside unless they are against the clear preponderance of the evi'deiice. Unzelmann v. Shelton, 19 S. D. 389, 103 N. W. 646. Inasmuch as' Mr. Heaton did not own the legal title to an entire lot, nor an undivided ’share or interest in an entire lot, we must hold that he was not a qualified signer of said petition. With Mr. Gross and Mr. Heaton disqualified, together with the five persons who were conceded to be disqualified, there remain only 24 signers of the petition. It is therefore immaterial whether Messrs. Dowling and Goetz were or were not qualified signers.

The judgment and order denying a new trial are affirmed.