13 S.D. 571 | S.D. | 1900
Plaintiffs prevailed in this action to remove a cloud by setting aside a tax deed covering the premises described in the complaint, and the defendant appeals. Assuming, without deciding, that the tax deed is void, we will examine the record, for the purpose of determining whether the court was justified in holding, as a matter of law, that appellant was not entitled to recover the value of certain permanent improvements placed upon the land while in actual adverse possession under such deed. The statute under which the action was brougnt contains the following provision: “In an action for the recovery of real property, upon which permanent improvements have been made by a defendant or those under whom he claims, holding under color of title adversely to the claim of the plaintiff, in good faith, the value of such improvements must be allowed as a counter-claim by such defendant. Comp. Laws, § 5455. In Parker v. Vinson, 11 S. D. 381, 77 N. W. 1023, it was held (the writer of this dissenting) that a void ta.x deed constitutes color of title, and that a defendant holding thereunder in good faith, and adversely to plaintiff may recover the value of such improvements. .Now, it appears from the undisputed evidence that upon receipt of his tax deed, which was executed and delivered on the 20th day of February, 1893, appellant went iuto actual possession of the land, placed thereon a fence and dwelling. house, and, claiming adversely to respondents, still continues to occupy the
To sustain this ruling, it is urged, in effect, that the tax deed, though fair upon its face, issued as the result of certain defective proceedings, rendering it void as-a matter of law', and appellant’s failure to give the required notice before the exe cution of such deed is conclusive evidence of bad faith. There is testimony tending to show that he was ignorant of any defects in his title, or that there was an adverse claimant, and the improvements appear to have been made in the honest belief that he was the absolute owner of the property. In Parker v. Vinson, supra, it was held that a recovery may be had for such betterments, when made “in the honest belief that the title to the property ivas vested, in the party making the improvements,” and in the absence of anything to the contrary, it will be presumed that the tax title was acquired and the improvements made in the utmost good faith. As fraud is never presumed, but must be clearly proved, counsel’s contention that the taking of the deed without proper notice, and before
The remaining assignments of error relate to points not likely to arise upon a retrial of the case, and therefore require no special attention. For the reasons above given, the judgment appealed from is reversed, and a new trial ordered,