4 S.D. 333 | S.D. | 1893
This action was brought by the plaintiff, who is respondent here, to quiet title to a certain parcel of land in Kingsbury county, and to remove as clouds thereon the mort
It is evident that in respect to the merits of this controversy, the ownership of this land, whether in O. D. Perry or Deloss Perry, must be the paramount question in the case. The respondent bases his rights and cause of action upon the fact of ownership by 0. D. Perry. The only direct allegation in the complaint of O. D. Perry’s ownership is specifically denied by the answer, and in it the ownership of Deloss Perry is attempted to be alleged. It is against the sufficiency of this or these allegations that the demurrer is directed. It is noticeable that the only direct allegation of the complaint of the ownership of O. D. Perry, is that on the day named as the date of the levy the land ‘ ‘was the property of O. D. Perry. ” Opposed to this is, the challenged allegation of the answer th.at from the 29th day of July, 1887, — long prior to the levy — “the said property was and is the property of said Deloss Perry, subject only to the mortgages, ” etc. While such fact of similarity does not change the essential character of the allegation, it will be seen that the answer closely follows the complaint in its averment of ownership. In McLaughlin v. Wheeler, (S. D.) 47 N. W. 816, where plaintiffs had declared in their complaint that “defendants are indebted to plaintiffs for work, ” etc., and the answer denied that ‘ ‘they, or either of them, are indebted to the
But it is argued by respondent that, conceding this view to be correct as to the sufficiency of these allegations to show title in Deloss Perry, they cannot avail appellants, because, as a statement of fact, they are opposed to and-inconsistent with the records of the court, of which it was bound to take judicial notice. There may be other answers to this contention upon the facts in the case, but a general and sufficient one would be that this judgment, which it is claimed should be judicially noticed by the court, was a judgment in an action distinct and independent from the one on- trial, — a judgment made" and entered long before this action was commenced. A court will not take judicial notice of its records and proceedings in another case. Enix v. Miller, 54 Iowa, 551, 6 N. W. 722; Banks v. Burnam, 61 Mo. 76; Lake Merced Co. v. Cowles, 31 Cal. 215. This question
The further question discussed by counsel as to the effect of notice of the levy as a notice of lis pendens is not relevant if the views above expressed are correct. If Deloss Perry was the owner of the land when the mortgages were given, he had a right to make, and the Ballou Company to take, the same. These rights could not be affected by notice to either or both that some one else was seeking to enforce a claim against the same land as the property of another. The demurrer admits whatever facts are well pleaded in the answer. We hold that Deloss Perry’s ownership is well pleaded. It follows that for the purposes of this demurrer he was the owner, and, being so, had a right to mortgage. For these reasons the answer, in our opinion, states a good defense to plaintiff’s cause of action as stated in his complaint. The order of the circuit court sustaining the demurrer is reversed, and the case remanded for further proceedings according to law.