15 S.D. 66 | S.D. | 1901
This appeal is from a judgment quieting in the defendant John T. Kountz the title to certain real estate, and from an order thereafter entered overruling a motion for a new trial.
The evidence not being presented, the question whether the facts sustain the judgment must be determined from the findings of the court, and, in considering the question, it will be assumed, but not decided, that respondents are sustainable in the contention that the findings of fact stated with and as a part of the conclusions of law must be accepted and treated as valid findings of fact. According to this view and the stipulation of counsel, it was found ‘'that on the 12th day of September, A. D. 1885, Peninah W. Kountz was the owner in fee simple of the premises described in the amended complaint; (2) that the said Peninah W. Kountz, being such owner in fee simple thereof, the defendant John T. Kountz, afterwards on the said 12th day of September, 1885, entered into and took possession of said premises, and has withheld from the said Peninah W. Kountz and the plaintiff the possession thereqf from the said last-mentioned date to the present time; (3) that the defendant John T. Kountz took and held such possession under color of title adversely to the claim of the said Peninah W. Kountz and the plaintiff, in good faith, to-wit, under an alleged tax deed for the taxes for the year 1879, referred to in paragraphs 2 and 5 of the amended reply, which deed was recorded in Book ‘F’ of Deeds, of page 189, in the office of the register of deeds of said county, February 9, 1883; (4) that the value of the permanent improvements made by said defendant John T. Kountz upop said land while so in possession of the same, is $160; (5) that the value of the said land, aside from the
* (5) that the tax deed mentioned in said counterclaim is void on its face, for the following reasons: (a) There is no statement therein that said lands have been offered at public sale for taxes, but not sold for want of bidders, (b) The said treasurer did not affix his official seal to said deed, (c) There is a statement therein that five distinct and separate tracts of land were exposed for sale and sold to said Sterling, at private sale, as one tract or parcel, for a gross consideration, (d) It does not appear from said deed that the tax sale, for the delinquent taxes for the year 1879, had closed, nor that the said treasurer had made his return thereof to the county clerk, as required by law, prior to the purchase at private sale, mentioned in said counterclaim, (e) It does not appear from said deed that the said sale was made at the office of the said treasurer.” In the agreed statement of the case it is recited that “the tax deed referred to in said pleadings was not introduced in evidence, nor was