15 S.D. 601 | S.D. | 1902
Lead Opinion
While the pleadings are not before us, it is quite apparent that plaintiffs, claiming to be the owenrs in actual possession of an alleged homestead containing 160 acres, brought this action to quiet title thereto by the determination of adverse claims and the removal of certain clouds, consisting in part of a sheriff’s deed resulting from an irregular foreclosure of a mortgage, and a quitclaim deed thereafter executed by themselves to the defendant Perry, which deed, they aver in the way of reply to the answer and counterclaim, was obtained by fraud. Although the single question as to whether such deed was procured from plaintiffs by fraud was submitted to a jury and answered in the affirmative, the trial court disregarded the verdict, and expressly found that it was not so obtained, and “sufficed to convey to the defendant Perry all the right, title, and interest of the said plaintiffs in and to said premises.” From a decree accordingly entered, quieting title in Perry’s grantee, the defendant Rummel, and forever enjoining plaintiffs from asserting any right, title, or estate in and to the premises, they appeal to this court.
Parties in actual possession, claiming to be the absolute owners, brought this action to quiet title by the determination of adverse claims, not to recover the possession of specific real property pursuant to section 5032 of the Compiled Laws, requiring issues of fact to be tried by a jury. Courts of chancery have jurisdiction to remove clouds from title, irrespective of statutes on the subject, and when an alleged owner is in possession his remedy in equity is apparently exclusive, 2 Beach, Eq. Jur. § 556, and notes; Ormsby v. Barr, 22 Mich. 80; Hosleton v. Dickinson, 51 Iowa, 244, 1 N. W. 550; Willis v. Sweet, 49 Wis. 505, 5 N. W. 895; Poston v. Balch, 69 Mo. 115; Moran v. Moran (Mich.) 63 N. W. 989, 58 Am. St. Rep. 462. Even where the complaint does not give jurisdiction, but
As the deed from appellants to Perry executed in June, 1899, and duly recorded, is, in the absence of fraud, confessedly sufficient to convey all their right, title, and interest, and the finding of the court that there was no fraud is amply sustained by the evidence, the judgment appealed from is affirmed.
Dissenting Opinion
(dissenting). I am unable to concur in the opinion of the majority of the court for the reason that, in my judgment, the jury were clearly right in finding that the quitclaim deed from the plaintiffs to the defendant George H. Perry, was obtained by fraud, and that the circuit court committed error in setting aside that finding, and substituting therefor the finding “that the evidence in this case does not show any misrepresentation or artifice to secure the execution of the deed from the plaintiff to the defendant Perry.” It is quite clear from the evidence that neither the plaintiff Benedict Reichelt nor his wife, at the time they executed the paper presented to them for execution by the brother of the defendant Perry, had any knowledge or information that the foreclosure proceedings were
I am of the opinion, therefore, that the judgment should be reversed, and a new trial granted.