2 S.D. 334 | S.D. | 1891
This was an action brought by plaintiff against the defendant to recover the possession of lots 5 and 6, block 102, in the old town site of Rapid City, Pennington county, S. D. The admitted and established facts are as follows: About July 8, 1881, the tiile to the property in dispute passed from the United States to John W, Nolin, in trust, as provided by. town site law; and about December 9th of the same year said Nowlin, as such trustee, conveyed the same to John E. Cyr, of the firm of Cyr & Volin. On the 9th day of February, 1884, Henry G. Hall, Herbert S. Hall, and Everett E. Hall, copartners under the name of H. G. Hall & Sons, recovered a judgment against John E. Cyr and Louis Volin, copartners as Cyr & Volin, for $251.70, in the district court of the first judicial district of Dakota territory, within and for Pennington county, which judgment was duly docketed on the 13th day of February, 1884, in the office of the clerk of said court. On the 17th day of June, 1884, Jacob S. Gantz recovered a judgment in the same court against the same parties, for $636.58. On August 13, 1884, Hall & Sons took out an execution on their judgment, and placed it in the hands of the sheriff, and he levied on lots 4 and 5 in said block 102. Notice of sale was published, but the sale never took place, and the
The first finding as matter of law was as follows: “That the defendant, Simon P. Conrad, holds said premises under color of title adverse to plaintiff, and in good faith placed the improvements thereon, * * * which are of a permanent and substantial character, * * * and is entitled to the sum of $2,250, the value thereof. ” The contention of the plaintiff is that there is no evidence to support this finding as to the good faith of the defendant in placing the improvements upon the lots, or that the defendant had at any time color of title to said premises. As to defendant’s “color of title,’’ the abstract shows that on the 22d day of December, 1885, Herbert S. Hall executed a warranty deed to the defendant for the premises, in the body of which deed are these words: ‘ 'Except that said lots are subject to a redemption from sheriff’s sale under execution, issued oat of the district court of Pennington county, Dakota, on a judgment in said county in favor of H. G. Hall & Sons and against John E. Cyr and Louis Volin, copartners as Cyr & Volin.” To the admission of this deed in evidence the plaintiff objected, upon the ground that there is nothing to show that Hall had any title to said lots except through a sheriff's sale made July 6, 1885, — less than one year prior to the date of the deed, — and that no assignment of the sheriff’s certificate of sale to Hall had been made to defendant, and it is
The defendant holding possession of the lots, by a color of title, the next question arises: Did he make the improvements upon which he bases his counter claim in good faith? The right of a defendant, in an action for the recovery of real property, to be allowed the value of the improvements he has placed upon it, depends in part upon whether they were made in good faith. Good faith consists in an honest intention to abstain from taking any unconscientious advantage of another, even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious. Section 4739, Gomp. Laws. Defendant’s deed from Hall contained the provision that the lots were subject to Cyr & Volin’s right of redemption from sheriff’s sale. This reservation was an express notification to him that his title was not absolute, and was sufficient to put any reasonably careful man on inquiry as to the nature of his possession before