18 S.D. 207 | S.D. | 1904
This is an action to foreclose a mortgage executed by the defendants Henry W. Lyon and Libbie Lyon, his wife, to the defendant George W. Lumley, and assigned by him to the plaintiff. Lumley, subsequently to the execution of the note and mortgage and their transfer by him to the plaintiff, became the owner of the property. The defendant James A. Smith claims the property by virtue of a tax deed executed to him by the treasurer of Brule county March 9, 1899, for the delinquent taxes of 1895, and for w-hich the property was sold in 1896, and alleges that said tax deed- has been of record more than three years, and pleads the statute of limitations as a de
The first question presented is, did the admission of the promissory note described in the'complaint over defendant Smith’s objection that there was no evidence offered or given proving or tending to prove its execution by Lyon and wife constitute reversible error? It is contended by the appellant that it was incumbent upon the plaintiff to prove the signatures of Lyon and wife to the note before it was admissible in evi» dence, as its execution and delivery were denied by the answer. It is contended by the respondent that the action was not to recover a money judgment against Lyon and wife, but only for the purpose of foreclosing a mortgage, and the mortgage being admissible in evidence for the reason that it had been duly recorded, and by the terms of the mortgage the amount secured thereby was agreed to be paid, proof of the genuineness of the signatures of Lyon and wife was not necessary. We are inclined to take the view that the appellant is right in his contention, and that it was error for the court to admit the note in evidence over the objection of the plaintiff’s
It is claimed by the respondent that the possession of the note by plaintiff was sufficient. Such possession would probably be sufficient to establish the delivery of the note after proof of the genuineness of. the signatures, but possession would not prove or tend to prove the genuineness of the signatures. Mr. Greenleaf, in his work on Evidence, in speaking of the proof required in certain cases, says: “After the note or bill is produced, the next step is to prove the signature of the defendant, where, by the nature of the action, or by the state of the pleadings, or the course of the court, this proof may be required.” 2 Greenl. § 158. In the case at bar the state of the pleadings required such proof, for, as before stated, the execution and delivery of the instrument had been denied by the de: fendant. Baker v. Warner, 16 S. D. 292, 92 N. W. 393. The learned counsel for plaintiff have sought to draw a distinction between the case last cited and the case at bar, but, in our opinion, there is in fact no distinction between the two cases. In that case the execution of the indorsement was denied by the defendant, and this court held that after such a denial it was necessary for the plaintiff to prove the signature of the endorser. The court, in its opinion, says: “It is contended that fhe court erred in receiving the three notes sued upon in evi
It is further insisted by the respondent that, as the action was simply to foreclose the mortgage, and no .judgment was demanded against the makers of the note, the note was not essential, and that the court could have rendered judgment of foreclosure upon the mortgage itself, and the error, therefore, if the note was erroneously admitted, would not affect the j udg - ment. This position is untenable. The introduction of the note in evidence at the trial and proof of the genuineness of the signatures of the makers was essential to a recovery in the action. Bergen v. Urbahn, 83 N. Y. 49. The admission of the note, therefore, in evidence, without proof of the genuineness of the signatures of the makers, was Clearly error.
The assessment for the year 1895 was made as appears by Exhibit F, as follows:
It will be noticed by the assessment roll that it was an assessment for the township of Lyon, and that under the head of the description of the property are the letters “N. E'.,” “N. W.,” “S. E.,” and “S. W.,” and that opposite the name of Lumley in the column appear ditto marks under the heading “N. E.” For the purpose of this opinion the letters “N. E.” may be regarded as appearing in the proper column oppo
The question of what description constitutes a valid assessment of property was very fully considered by the Supreme Court of Michigan in the late case of Auditor General v. Sparrow, 116 Mich. 574, 74 N. W. 881. In that case the letters “N. E.,” “N W.,’’ etc., were regarded as a sufficient description. The court, in an able and exhaustive opinion, says: “It is contended that these are not valid descriptions, and counsel cites cases from Minnesota in support of the claim. An examination of the case of Keith v. Hayden, 26 Minn. 212, 2 N. W. 495, will show that it does not cite an adjudicated case, while that of Power v. Bowdle, (N. D.), 54 N.W. 404, 21 L. R. A. 328, 44 Am. St. Rep. 511, merely follows a former decision by the same court, viz., Power v. Larabee, 49 N. W. 726, 2 N. D. 141. The opinion in Power v. Larabee cites Keith v. Hayden, supra; Williams v. Land Co., (Minn.), 21 N.W. 550; Black, Tax Titles, § 38;. and Cooley, Tax’n, p. 404. On examination of these authorities we find that in none of them is there a decision upon similar descriptions, except the case of Keith v. Hayden. * * * In discussing the question of the requisite accuracy of description, Mr. Justice Cooley says: ‘A more satisfactory rule
It is insisted by the respondent that under the decision in Turner v. Hand Co., 11 S. D. 348, 77 N. W. 589, the assessment in this case is clearly insufficient upon which to base tax proceedings and the tax
There are a number of other questions presented by the record, but in the view we take of the case we do not deem it necessary to consider or discuss them in this opinion.
The judgment of the court below and the order denying a new trial are reversed, and a newT trial is granted.