24 S.D. 628 | S.D. | 1910
The plaintiff by his complaint alleged that since March 31, 1904, he has been and now is the owner in fee and entitled to the possession of the following described real estate situated in Lake county, S. D.: The N. W. sec. 12-108-51. That
To this complaint the defendant made the following answer: The defendant denied each and every allegation of said complaint not thereafter specifically, admitted. It is admitted that he claimed some right, title, interest, or estate in or some lien or incumbrance upon the premises described in plaintiffs complaint, and alleged the fact to be that he is the absolute owner in fee of said premises; and defendant alleged that he is the owner in fee of said premises, and i-s in possession thereof, and that his said ownership is based upon mesne conveyances from the United States through Matilda Benjamine, W. M. Lee, sheriff, Frederick T. Day Martin F. Berther, treasurer, T. H. Radcliff, the Plankinton Bank of Milwaukee, William Plankinton, as assignee of said Plankinton Bank, Irvin Bean, and Henry ITerman, the latter two
To which answer of the defendant the plaintiff made the following reply: The plaintiff denied each and every allegation of said answer and counterclaim not thereafter specifically admitted. Plaintiff denied that the defendant is the owner in fee of the premises, or that he has any valid right, title, or interest therein, and plaintiff admits that there are certain purported conveyances of record in Bake county under and by virtue of which deeds the defendant claims some right or title in and to said premises, as alleged in defendant’s answer, and denies that the defendant has any title whatever to said premises by virtue of said purported conveyances, and alleges that whatever possession defendant has of the said oremises is and has been wrongful and without the consent of plaintiff; and plaintiff denies that the defendant, his grantors, or predecessors have, under color of title or otherwise, paid all taxes legally assessed against said premises for more than io years prior to the -commencement of this action as alleged in said answer; and defendant admits that on the 24th day of May, 1893, Frederick T. Day was the owner of the land in question, and denies that he conveyed said premises to the Plankinton Bank at that or any other time; further admits that about the 1st of June, 1S93, the Plankinton Bank attempted to make an assignment for the benefit of the creditors, and that defendant claims title through a conveyance from the purported assignee of said bank, but alleges that said assignee never had any title or right to said premises, and that defendant had notice thereof; that defendant for more' than six
Tt is first contended by appellant that this is an action on the law side of the court as distinguished from an equity or chancery action. But we are of the opinion that the same was properly triable on the equity- side of the court. In plaintiff’s complaint he says that this action is brought for the purpose of determining adverse claims to the property, and of quieting title in plaintiff. Plaintiff demands judgment that defendant be required to set forth the.nature of his claim, estate, or interest or title, and that all adverse claims of defendant be determined by a decree, and that by such decree it be declared that defendant has no estate or interest in said real property, and that it be decreed that the title of plaintiff thereto is good and valid, and that defendant, and all persons claiming under him, be forever enjoined and debarred from asserting any claim to said land, and that plaintiff have such other and further relief as may be just and equitable. In determining on which side of the court — the jury or law side, or the court or equity side — any given case is, we must go back to the common law for our basis. The provisions of the federal and state Constitutions that the right to trial by jury shall remain inviolable, has been construed to mean that the right to common-law trial by jury shall remain inviolate. Therefore we must go back to the common-law distinction as to what causes were triable by jury ■ as a matter of right, and what were triable before' the court without a jury. In the trial of all those cases which came on the law side of the court the parties were entitled to trial by' jury as a matter of right, while all those cases which came on the chancery'- or equity side of the court were triable by the court without a jury. At common law the law side of the court never had any such power or jurisdiction as is sought to be invoked by plaintiff in his complaint in the case at bar. The allegations and the relief demanded are wholly' and purely
The trial court, among others, made the following finding: "That the said conveyance of land involved in-this action from said Frederick T. Day to said Plankinton Bank was made for the purpose of hindering, delaying, and defrauding the creditors of said Frederick T. Day.” Appellant excepted to such finding, and now assigns -the same ais error, and contends that such finding is not sustained by the evidence. We are of the opinion that the evidence was sufficient to sustain this finding. Frederick T. Day testified that he had an understanding with the bank that he should sell and manage the property after the conveyance the same as he had before, and -that at that time he was indebted to the extent of several hundred thousand dollars. We are of the opinion that this evidence had the effect to show that a secret trust existed between Day and the bank, and which necessarify had the effect of hindering and delaying the creditors of Day in the collection of their debts, and this would be true whether the instrument- by which Day conveyed to the bank was an absolute deed or a mortgage. Walklin v. Horswill, 123 N. W. 668.
The trial court also made the following finding: “That at the time said Day made and delivered to' plaintiff herein the quitclaim deed to said lands he owned no right, title, interest, or estate in the said real property described in -the complaint.” To this finding the plaintiff excepted, and contends that the same is not sustained by the evidence. The said deed from Day to the bank on May 24, 1893, was absolute in form, and transferred to the bank the whole of the title and interest of Day. On the face and. by the purport of said deed Day was fully divested of all title and interest in and to the land in question. The court having found that the said deed was given to hinder and delay the
The trial court also made the following finding: “That the said Frederick T.' Day, after conveying -said land to the Plankinton Bank, of which said Day, at the time of the said conveyance was the president, stood by for nearly 11 years, and until the execution of said quitclaim deed to plaintiff herein, without asserting any claim or title to the land in controversy, and permitted the assignee for the benefit of the creditors of said bank to continue to assert ownership and control of it, and to sell it under the direction and order of the circuit court of Milwaukee county, state of Wisconsin, to defendant for value, to wit, for the - sum of $1,700 paid by defendant to said assignee for the benefit of the creditors of the said Plankinton Bank, wherefore said Day is guilty of laches, and he and the plaintiff, his grantee, should be estopped from asserting any title to or interest in said land as against the defendant.” To this finding the plaintiff excepted and now contends that the evidence was insufficient to sustain the same. We are of the opinion that the evidence fully sustains the finding. The fact that Day himself, as president of the Plankinton Bank, made and executed the _ assignment to the assignee for the benefit of the creditors of -the bank, and stood by and saw the assignee to whom he made the assignment of this property asserting ownership over this land as such assignee, and finally selling it to defendant for the approximate full value thereof, without himself ever making any claim thereto, or in any manner objecting to such sale, fully sustains the finding.
After having examined each and every assignment of error made by appellant, and finding no reversible error in the record, the judgment and order denying a new trial are affirmed.