4 S.D. 555 | S.D. | 1894
This is an appeal from an order of the circuit court overruling a demurrer to the answer. The appellant, Risdon, brought the action to remove, as a cloud upon his title, a certain mortgage appearing to have been executed by one Morris Conway. Without attempting to fully set out the facts alleged in the complaint, the following are sufficient for an understanding of the plaintiff’s alleged cause of action. It is averred that, while the land in question was yet a part of the public domain,’ it was entered and paid for, under the pre-emption laws of the United States, by some person to the plaintiff unknown, in the name of Morris Conway, who received from the receiver of the proper land office a duplicate receipt therefor; that the said Conway had never made any settlement upon or cultivated any part of said land, and that the testimony upon which said entry was made was false and fraudulent; that after the issuance of said receipt, the mortgage referred to was executed upon the land described in the receiver’s receipt in the name of said Conway as morlgagor, and said respondent as mortgagee, and duly recorded; that, about 13 months after the date-of said receipt and the date of said mortgage, appellant filed a contest against said Conway, and his said- entry, upon the grounds already stated, and asking that the said entry be cancelled; that thereafter such ‘‘further proceedings were had in said contest that on the 20th day of February, 1882, the register and receiver of the United States land office at Mitchell, Dak. Ter., duly gave, made and entered a decision therein, canceling said entry of Conway, and declaring the same forfeited,” etc.; that this decision was affirmed by the land commissioner, who also ordered that the appellant should have 30 days priority within which to file upon said land; that within said 30 days, and while said order was in force, said appellant did settle upon and improve said land as a homestead, made proof thereof, commuted said homestead, and received a final receipt therefor from the said land office; and that he afterwards received a patent therefor from the United States. It is then alleged that respondent is
Appellant contends that respondent’s allegation that the service of the contest notice was made in no other way than by publication, and that no affidavit was made and filed justifying such publication, was not an effective averment of such facts, because made upon his information and belief. This contention is plainly untenable. It is ordinarily held that a party cannot raise an issue by denying knowledge or inhumation sufficient to form a belief concerning facts which, from their nature must be known to him, or which he has ready and convenient means of knowing. The cases cited by appellant are of this character But this is not such a case. The defendant here was not attempting to deny, and thus put in issue, a fact alleged by plaintiff, but was himself averring an affirmative fact. If it wras in the nature of new matter, it would be deemed controverted, under Section 4933, Comp. Laws. And in such
For the purpose, then, of determining the question raised by this demurrer, it must be taken as a fact that the only service made upon Conway in the contest proceedings was by publication, and that no affidavit was made or filed showing that personal service could not be made. It is affirmatively alleged in the answer that rule 12, prescribed by the secretary of - the interior, allowed service of contest notice by publication only when it is shown by affidavit of the contestant, and other evidence, that personal service cannot be made. Such a rule is reasonable and right, and a contrary rule or practice would be unreasonable and wrong. In this case the register and receiver had decided, upon evidence which they had received and acted upon, that Conway had so complied with the law as to entitle
One other question remains. Appellant insists that the questions raised by this demurrer to the answer are the same questions raised and passed upon by the court on the defendant’s demurrer to the complaint, and are therefore res judicata. This cannot be. The question which we make controlling in this demurrer is not whether the commissioner is invested by law with power to cancel entries and final receipts, but whether, conceding the power, the facts stated in the answer have put him in position to exercise such power. The complaint did not state such facts. It only stated his decision. In deciding the demurrer to the complaint, the court may have acted upon the theory that, in the absence of a contrary showing, the existence of the jurisdictional facts would be presumed; but in this demurrer to the answer the court is not allowed to so presume, for the demurrer admits that they did not exist. For these reasons, and upon this theory, we are of the opinion that the answer stated a good defense to the cause of action set out in the complaint.
Appellant’s counsel presents a very able and carefully prepared argument upon the mooted question of the legal value of a final receipt, and the power of the land office and the commissioner to cancel the entry and annul the receipt; but, so long as it remains conceded by the pleadings that they had no jurisdiction to do what it is alleged they did do, those questions in this case are only speculative, and do not require a decision. The order of the circuit court is affirmed, and the case remanded for further proceedings according to law.