175 N.W. 556 | S.D. | 1919
The facts found are, in brief, as follows: This action was commenced in 1918. One T. made homestead entry on a certain tract of land. She thereafter executed a will wherein she d'evised all her property, “including the homestead entry,” to respondent. She died without having made final proof, and leaving no husband, no minor children, but several children besides respondent. The.se other children and certain children of deceased children are the parties made defendants herein. T.’s will was admitted to probate. Respondent thereafter made final proof and received patent in which the grantee was designated as “the heirs or devisees of” T. This patent respondent placed of record in April, 1905. Since that tme respondent had been in continuous possession and occupancy of the land, claiming' title thereto under the said will and patent, and had paid all the taxes assessed against said land from 1905 to 1917, inclusive. The youngest defendant was 32 years of age when this action was commenced. The trial court concluded that respondent is the sole and absolute owner of said land and entitled to have a
Respondent contends that he acquired title to said land through the will and patent, and cites the case of Hays v. Wyatt, 19 Idaho 544, 115 Pac. 13, 34 R. R. A. (N. S.) 397, in support of such contention. We believe there to be much merit in such contention, but appellant challenges the soundness of same, and we do not feel called upon, at this time, to pass upon the important legal propositions thus presented.
“Generally speaking, any instrument, however defective or imperfect, and no matter for what cause invalid, purporting to convey the land, and showing the extent 'of the tenant’s claim; may be color of title.”
The judgment and order appealed from are affirmed.