19 S.D. 271 | S.D. | 1905
Lead Opinion
This is an action to quiet title to a certain lot in the city of Sioux Falls. The complaint is in the usual form, and, the findings and judgment being in favor of the plaintiff, the defendant Coughran has appealed.
The defendants, in their answer, deny that the plaintiff was the owner of the property, admit that they claim title to said premises, and deny that such claim is without right. As the defendant F. W. Grow has not appealed, the defendant Cough-ran only will be referred to hereafter in this opinion. The defendant Coughran then alleges as follows: “(4) And the defendant Coughran states the nature of his claim and estate in the real property described in the complaint as follows. ” He
On the trial the defendant and appellant objected to any evidence on the part of the plaintiff on the ground that the defendant pleaded his title as a counterclaim, and that, plaintiff not having replied thereto, the defendant’s title was admitted. The circuit court having held, as claimed by the defendant, that the answer setting up the title of the defendant constituí ed a counterclaim, requiring a reply, the plaintiff, upon motion, was allowed to file a reply thereto, in which it set up certain irregularities in the assessments, which plaintiff claimed rendered the tax deed invalid.
The court found certain procedures of foreclosure in an action by the. Northwestern Mortgage Trust Company against Jones and wife, under which plaintiff claims, and also found that the certificate o.f sale was duly assigned and transferred by said Northwestern Mortgage Trust Company to John L. Lockhart, trustee for the state of South Dakota; that thereafter a sheriff’s deed was duly executed to said Lockhart, and that since the 80 th day of January, 1896, the state of South Da
The appellant contends that the court erred in permitting plaintiff to file a reply to his alleged counterclaim, on the ground that the court, in allowing the plaintiff to file a reply, abused its discretion and violated one of the rules of the court. The action was commenced July 9, 1897 — less than three years after the recording of the defendant’s tax deed. The reply was served April 20, 1901 — something less than four years af
It is insisted on the part of the respondent that the aver-ments in the answer did not constitute a counterclaim, and were not designated as such therein, and therefore it did not require a reply. It further insists that, if a reply was required, the granting of plaintiff’s motion for leave to reply was entirely within the discretion of the trial court, and that in allowing the same to be filed the court committed no error. We are inclined to take the view that the plaintiff was ifight in treating the answer as a defense not requiring a reply, and not as a counterclaim. The plaintiff alleged title in itself, and the defendant alleged that he was the owner of the premises under and by virtue of the tax deed set out in the answer, and the issue was therefore squarely presented as to whether or not the plaintiff was the owner of the property. The plaintiff had alleged ownership, and, that ownership being denied, it was competent for the defendant to disprove the plaintiff’s ownership by showing that he (the defendant) was the owner, and pleading his tax deed was simply another way of denying the plaintiff’s ownership. It will also be noticed that the defendant, in his answer, does not designate the matter pleaded therein as pleaded by way of counterclaim, or as constituting a counterclaim, and there is no prayer for judgment. We are of the opinion, therefore, that the facts stated constitute a defense
Again, it is contended by the appellant that the' state could hot maintain this action for the reason .that the officers,- in the proceedings for assessing, levying, and collecting the taxes, were acting as the agents of the state, and therefore it could take no advantage of any irregularities in the proceedings.No authority is cited for this contention, and we are certainly at a loss to discover any reason why the state, in seeking to establish its title to property in the courts of the state, which it has acquired, could not question the invalidity of the proceedings under which defendants claim title. When the state is compelled to come into court to establish its-title to property alleged to be wrongfully withheld or claimed by a defendant, the case is to be tried precisely as it would be between private individuals, except that in certain cases the statute of limitations is not applicable to the state, and laches cannot bé
It is further contended by the appellant that the court erred in permitting an assignment of the mortgage under which plaintiff claims title to be given in evidence, for the reason that the assignment was not properly ackowledged, so as to entitle it to be recorded, and that the execution of the assignment was not properly proven. The assignment purported co be executed by the president of the Northwestern Mortgage Trust Company of Redfield, S. D., of which W. W. Taylor claimed to be the president at the time of the assignment. The certificate of acknowledgment, omitting the formal parts, is as follows: “On this 20th day of December, 1894, before me, the undersigned, personally appeared W. W. Taylor, to me personally known, who, being by me duly sworn, did say that he is the president of the Northwestern Mortgage Trust Company of Redfield, So. Dakota, and that the seal affixed to said instrument is the corporate seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by authority of its board of directors, and said W. W. Taylor acknowledged said instrument to be the free act and deed of said corporation. C. H. Vinton, Notary Public in and for Spink County, Dakota. [Seal.]” It will be noticed that the notary has not followed the statute strictly in his acknowledgment, as he does not certify that said Taylor was the president of the corporation described in and that executed the instrument. The language of the statute upon that subject is as follows: “The acknowledgment of an instrument must not
It is further contended by the appellant that the court erred in finding that the notice that defendant Coughran would apply for a tax deed was not properly served upon the then legal owner and party in possession of said land. There was a conflict, in the evidence upon which this finding is based,
It is further contended by appellant that the court erred in not finding'that the judgment entered in the case of Cough-ran v. Jones was not conclusive as to Coughran’s title. The record in this case discloses no application to the court on tne part of the defendant for a finding upon this qu'estion, and, where a party to an action fails to ask for a particular finding upon a question or issue involved in the case, the failure of the court to make such finding will not be ground for reversal of the court’s decision, where facts sufficient have been found to sustain the judgment of the trial court. In the case at bar, however, the judgment was clearly inadmissible as against the plaintiff in the action, as such plaintiff was not a party to the record in that aótion, or- a privy to the party, and was not bound thereby. The question as to the admissibility of a record of a judgment as against persons not parties to the record was fully discussed in the case of McPherson v. Julius, 17 S. D. 98, 95 N. W. 428, and was approved in Chapman v. Greene, 18 S. D. 505, 101 N. W. 351.
Finding no error in the record, the judgment of the circuit court and order denying a new trial are affirmed.
Concurrence Opinion
I concur in the conclusion that the judgment of the circuit court should be affirmed, without approving all the reasons stated by the Presiding Judge.