28 S.D. 612 | S.D. | 1912
Lead Opinion
On April 2, 1886, one Ingerid O. Markoe made final proof and payment under government homestead entry for a quarter section of land in Faulk county. Thereafter, on May 7, 1891, one Edith Sharpless, through mesne conveyances from said Markoe, became the owner of said land, and on the 18th day of November, 1902, the said Edith Sharpless died intestate at West Chester, in the state of Pennsylvania, leaving three sisters and two brothers as her only surviving heirs. No administration of her estate was ever had. On January 26, 1909, the said brothers and sisters of said Edith Sharpless joined in a quitclaim of said land to the plaintiff, who brings this action to determine adverse claims under the statute. The defendants answered by general denial, and for further answer allege that Alice M. A. Pickler and L. A.
Appellant’s contentions are: (x) That there is no evidence that the United States government ever parted with its title to the premises of Ingerid O. Markoe, grantor in plaintiff’s chain of title. (2) That the court erred in receiving oral evidence of the names and relationship of the persons who, it is claimed, are the only heirs of Edith Sharpless, deceased; that she was unmarried and had no offspring, and that her parents were deceased. (3) That the trial court erred in holding that the circuit court of Faulk county did not acquire jurisdiction in the action in the circuit court of Faulk county, S- D., wherein' H. M. Carpenter was plaintiff and Edith Sharpless was defendant.
From the record it appears -that plaintiff, as the successor of Edith Sharpless, brought this action against the defendants, as successors in interest of H. M. Carpenter, to quiet title to certain lands situated in Eaulk county. Among the various answers set up by defendants is a counterclaim, whereby defendants claim title in themselves under a certain domestic judgment rendered by the circuit court of Eaulk county in favor of said Carpenter, wherein the said Carpenter was adjudged and decreed -to be the absolute owner of said premises, and the said Sharpless was decreed to have no interest or title -therein, and said title to the land in question was quieted in Carpenter. The summons was attempted to be served by publication in 1901. The judgment recited that due service of the summons 'had- been made upon Edith Sharpless. The affidavit for publication is defective, and not sufficient to bring into exercise the judicial function, or to confer jurisdiction upon the court to order publication of the summons, in that said affidavit nowhere, in any manner whatsoever, shows any diligence to ascertain the place of residence of said Edith Sharpless outside the state of South Dakota. The affidavit shows that some inquiry was made to ascertain her place of residence
Plaintiff brought this action to remove clouds from his title, alleging ownership in himself, and also alleging generally that defendants wrongfully and unlawfully and without right claim some interest in said land adverse to plaintiff. Under this complaint, plaintiff could attack any cloud against his title, whether the said cloud consisted of an unlawful tax deed or an unlawful judgment. There is no reason in principle why one kind of cloud on title may not be attacked under this kind of complaint, as well as any other kind of cloud. The clouds on title under this judgment are just as effectual as clouds under a tax deed. This court,' in Campbell v. Trust Co., supra, held that the allegations in the complaint attempting to show defects in defendants’ tax deeds and tax titles were unnecessary and constituted surplusage; and there is no possible reason why the same rule would not be applicable to defective judgments which constitute clouds on title. If plaintiff had attempted to set out the defects in this judgment in his complaint, such allegations would have constituted surplusage. The complaint was sufficient to remove whatever clouds on title in favor of defendants that might be set up by defendants in their answer. The purpose of this complaint was to attack directly all adverse clouds and claims on plaintiff’s title, which, necessarily, would include and overturn these judgments decreeing and establishing title in defendants. If an action or proceeding is brought for the very purpose of impeaching or overturning the judgment, it is a direct attack upon it. 23 Cyc. 1062.
It will be observed that the judgment in question declares and quiets title in the plaintiffs in said actions, and decrees that the defendant, Edith Sharpless, has no title therein. The defendants in this case have answered, setting up this judgment not only as a bar and a defense, but as a counterclaim investing defendants
In the case at bar, even if it should be held that plaintiff was required under our practice to specifically set out the facts constituting and showing the invalidity of said judgment, and that his complaint was therefore defective and not sufficient for the purpose of direct attack upon this judgment, still, where the defendants have alleged said judgment as a counterclaim, have alleged it as an independent cause of action in their own favor, under and by virtue of which they claim title adverse to plaintiff, the plaintiff stands in the position of making direct defense thereto by his reply, just the same as if the defendants had commenced the cause of action as plaintiffs, and the plaintiff in this case had answered thereto as defendant. The allegations of the reply raise directly the want of jurisdiction to render such a judgment. While the allegations of the reply are not as specific and definite as might have been, still, in the absence of a demurrer or motion to make more definite, such allegations are sufficient to raise the question of the jurisdiction and validity of such judgment. Hyde v. Redding, 74 Cal. 493, 16 Pac. 380. There are numerous decisions holding that the validity of a judgment may
Finding no error in the record, the judgment of the circuit court is affirmed.
Concurrence Opinion
(concurring specially). I concur with the conclusion reached in the majority opinion; but I would base my conclusion upon reasons other than those therein stated.
There can be no question but what the affidavit for order directing publication of summons was insufficient to authorize the order of publication that was made and entered in the action wherein the disputed judgment was entered. It must be conceded that respondent might bring an action seeking only to set aside such judgment, and that he might afterwards bring another action to quiet title in himself. If it should be held that these two reliefs could not properly .be sought in one action (upon which proposition I advance no opinion), yet, if such an action was brought, no objection raised thereto, and,-upon trial, both prayers of the complaint were granted, the defendant therein would not be heard, upon an appeal, to urge any claim of misjoinder of actions. In the case at bar, issue was joined as to the validity of the former judgment by answer and reply. Upon the trial it was not the respondent who offered the affidavit and order of publication in evidence for the purpose of destroying the prima facie proof of a' valid judgment, as evidenced by records received in support thereof. If such offer had been made by respondent, we would have a very different record than the one presented, and, if the record further shorVed objections to such offer, we might be called upon to determine whether respondent’s attack upon the judgment was direct or collateral, if, upon that question, turned the admissibility of the proof offered. The record, -however, shows that there was offered, by the appellants themselves, what pur
Upon the record as made by the appellants themselves, the judgment of the trial court was clearly right, and should be affirmed.