10 S.D. 216 | S.D. | 1897
This action to determine conflicting claims to and recover for the use and occupation of lots 8 and 9 in block 36 of Snyder’s addition to the city of Vermillion, was tried to the court without a jury, and resulted in a judgment for plaintiffs, from which, and an order overruling a motion for a new trial, defendants appeal.
Plaintiffs’ claim of title, as alleged in the complaint and found by the court, is as follows: Patent from United States to Hugh Compton, dated April 20, 1867, describing the E. % of the S. W. i and the W. i of the S. E. J of section 13 township 92, range 52, which includes the premises in dispute On the 11th day of December, 1866, Compton and wife conveyed all of
Were the contention of counsel for defendants tenable, every immaterial change in the title of an action, made pursuant to an order of the court by way of amendment, substitution, or intervention after taking a deposition, and before trial, would be sufficient to exclude all evidence thus procured, though otherwise subject to no objection. “Statutes directing that the envelope or wrapper covering a deposition shall be indorsed with the style of the cause and otherwise have been liberally construed, the prevailing object being only to preserve the purity of the deposition.” 6 Enc. PL & Prac. p. 535. Under a system which, lpoking to substance rather than form, requires courts to disregard trivial errors or informalities, and, to promote justice, allows liberal amendments as to parties, a deposition taken in a cause, and relating to the subject matter upon which the action is based, should not be suppressed, at the instance of parties defendant, for the sole reason that the title of the cause as instituted, and as the same existed at the taking of said deposition, is found to be indorsed upon the sealed envelope in which the same was transmitted, instead of the title as subsequently amended, and containing the names of
To the reading of this deposition of Charles Boone, Jr., taken in narrative form, counsel for defendants interposed numerous objections, principally upon the ground that the testimony offered is ‘ ‘incompetent, immaterial and irrelevant, and no proper foundation is laid for it, and as stating a conclusion of the witness, and that it is hearsay evidence.” There being no question substantively at issue as to the identity of the property in dispute, and that fact being clearly established by the undisputed testimony of another witness, that portion of the deposition with other evidence relating to the same subject, and the objections of counsel to its introduction may safely be considered generally in determining questions of evidence relative to the alleged mutual mistake in the execution of the deed by Enoch C. Gray, in which I. C. McDowell was named as grantee instead of Thomas C. McDowell, the real purchaser and party with whom the transaction was had. Upon this subject, Mr. Boone, who is a brother in-law of the grantor, Enoch C. Gray, and who placed his name upon the McDowell deed as a witness to its execution, testified over the 'objection of counsel, in substance and effect as follows: “I knew Enoch 0. Gray in his lifetime. * * * He died October 15, 1885. * * * I was also personally acquainted with Thomas C. McDowell, * * * and I have had many conversations with him. I remember Mr. McDowell making a deal (I mean Thomas 4C. Me
In our opinion, the foregoing testimony was properly admitted, and, being undisputed, is sufficient to sustain the finding that, at the time designated, the said Enoch C. Gray “made, executed and delivered to the plaintiff Thomas C. McDowell, under and by the name of I. C. McDowell, a warranty deed for said premises, said latter name being written in said deed by mutual mistake of the parties, and said deed being intended to convey title to said Thomas C. McDowell. ” A proper foundation was laid for the evidence, which is not hearsay in character, and appears to be the best of which the case in its nature is susceptible, No claim is made that any person by the name of I. C. McDowell ever existed, and it is conclusively shown that by using the initials “I. C.” instead of “T.- C., ” the gran tor intended to convey the property by warranty deed to Thomas 0. McDowell, to whom such deed was delivered, and who paid the purchase price, exercised the rights of ownership over, and finally sold and conveyed, the premises in his true name, to the grantor of plaintiff Salmer. In Andrews v. Dyer (Me.) 16 Atl. 405, it was held that parol evidence is admissible to show that by Mercy A. Andrews, named as grantee in a deed, Mellissa A. Andrews was meant; and in the case of Staak v. Sigelkow, 12 Wis. 234, the court say: “Though a deed be made to a party by a wrong baptismal or Christian name, the grant is good and the title vests in the intended grantee. The uncertainty as to the person of the grantee does not in such case appear upon the face of the deed, but. is caused by extrinsic evidence, and is therefore susceptible of explanation or removal by parol proof.”
For the purposes of this case, and in the absence of anything to justify a different view, the execution of the deed by Gray before witnesses, with intention that Thomas C. McDowell should thereby become the owner of the property and the delivery of the deed with like intent, when considered with the
Though not materially essential to the case as made by the pleadings, we have carefully considered the testimony of the witness Cyrus Snyder, who formerly owned and caused the addition to which the premises in dispute are situated to be platted, and who produced at the trial a recorded plat thereof, which was introduced in evidence over the objection of counsel for defendants; and we are firmly convinced therefrom that they would have no just cause to complain of the competency and sufficiency of such evidence had the identity of the property been directly made one of the issues in the action. We therefore conclude that under no theory of the case • were the defendants -prejudiced by any ruling of the court upon objections offered to the introduction of testimony under the complaint, and that the evidence sufficiently shows that plaintiff G. T. Salmer is entitled to the property, together with the rents and profits, as found by the court, unless title thereto was divested by the defendant Lathrop’s tax deed, under which he went into actual and continuous possession on or about November 14, 1884, and by virtue of which he claims to be the absolute owner of the premises.
It appears from a certificate of sale put in evidence by defendants and made a part of the record, that the property was sold for the taxes of 1881 to the defendant A. H. Lathrop, on the 2d day of November, 1882, at private sale, the same having been offered at public sale, and not sold for want of bidders; and the tax deed executed thereon November 14, 1884, and under which said Lathrop claims title, recites that the purchase and sale was at public auction at the door of the court house, on the 2d day of November, 1882, and that both lots were sold
The view we have taken leads to the conclusion that the tax deed upon which the defendant Lathrop relies is void upon its face, because the indisputable recitals of the instrument conclusively show that two distinct and separate town lots were exposed and sold at public auction as one tract or parcel, for a gross consideration, at a time when such property could not be sold for delinquent taxes at public sale. The deed, though recorded more than three years previous to the commencement of the action, being void upon its face, does not set in operation the statute of limitations, or render the defendant’s actual possession thereunder sufficient to create an' interest adverse to that of the plaintiff. As the conclusive recitals of such recorded deed perpetuate all competent evidence that the instrument is a mere nullity, no legal right: can accrue to the grantee named, and no reason exists for the commencement of a suit within three years to defeat a claim based thereon. Says Mr. Black: “The provision of a statute of limitations, ,to the effect that an action for the recovery of real property sold for taxes can only be commenced within a certain number of years from the date of the recording of the deed, will not run in favor of a
Plaintiffs’ recovery of the property, under the judgment of the trial court, is conditioned upon the payment of $101.50, taxes paid by the defendant Lathrop, together with accrued interest on that sum, which conclusion we regard as equitable in the premises, and as favorable to the defendants as a fair construction of the statute (Comp. Laws, § 1640) providing for the payment or tender of taxes and interest as a condition precedent to the commencement of the suit, will justify, when construed with Sec. 1643, requiring the court, in cases like the present, to ascertain the just amount of taxes due, and render judgment therefor against the taxpayer, when found to be the owner of the land included in a tax deed adjudged to be void. Under allegations and proof that the defendants’ claim of title is without foundation in fact or in law, and the deed upon which he relies is void upon its face, no payment or tender is necessary. Clark v. Darlington (S. D.) 63 N. W. 771; Power v. Larabee, 2 N. D. 141, 49 N. W. 724; O’Neil v. Tyler, 3 N. D. 47, 53 N. W. 434.
All controlling questions have been carefully considered, and, if we are right in the view taken, other points incidentally discussed in the briefs of counsel are not essential to the conclusion reached. The judgment appealed from is affirmed,