Newton v. McGee

.GATES, J. This action was brought by plaintiff, presumably under the provisions of section 675, C. C. P., to determine the adverse claims of defendant to certain real -estate in Hand county. The complaint alleges that plaintiff is the -owner and holder of a mortgage lien (describing it) upon the property, and that defendant wrongfully claims • an estate and interest in -said -real estate adverse to the plaintiff, and prays that her claim to -the premises be established against any claim of the defendant therein, and that the defendant be forever barred against having or claiming any right or title to the premises adverse to the plaintiff, and that he release to the plaintiff all claim to said premises, and for such other relief -as may be equitable. [1-3] The summons and complaint were personally served upon defendant April 5, 19x0, outside of this state. Before answering, defendant made a special appearance and moved -to quash the summons and the service thereof, upon the grounds that the action was not brought in conformity with the provisions of chapter 81 of the Laws of 1905; that the service of summons outside of the state, without an order for the publication thereof, was-defective; and that the summons was insufficient, because it gave plaintiff’s initials instead of her full name. The motion was over [223] ruled, and properly so. Chapter 194 of the Laws of 1903, as amended by chapter 81, Laws of 1905, did not repeal section 675, C. C. P. The new remedy was merely cumulative. Buckham v. Hoover, 18 S. D. 429, 101 N. W. 28. Chapter 127 of the Laws of 1907 expressly did away with the necessity of an order for the publication of summons in this case. If defendant desired to" avail himself of the technical objection as to the initials, he should have made a showing as to the true name of -the plaintiff. Hoyt v. Williams, 1 Dak. 505 (Dist. Court); Bliss, Code PL § 146a. [4, 5] Subsequently defendant filed another motion to dismiss the-summons and complaint upon the first two grounds above mentioned, and because the complaint did not state a cause of action. This motion was properly denied. Subsequently -defendant demurred t© the complaint upon the grounds of said motion, and1 because there was a defect of parties defendant, in that all the necessary parties required under chapter 81, Laws of 190.5, were not made defendant. Plaintiff, as 'mortgagee, had the right to maintain the action. Battelle v. Wolven, 19 S. D. 87, 102 N. W. 297; Rhomberg v. Bender, 28 S. D. 609, 134 N. W. 805. It was not necessary -that all parties claiming an interest be joined as defendants. Ward v. Brown, 28 S. D. 375, 133 N. W. 699. Defendant their answered, setting up a general denial, and, by way of counterclaim, that he was the owner of a tax deed on the premises, dated and recorded April 6, 1900; that he -had ever since been in possession; that he had paid the taxes under t'he tax-sale certificate >and deed from 1894 to 1909, inclusive, and had, while in possession, made valuable, permanent improvements in digging and removing stone and in 'breaking- the land, and setting forth the value -of such improvements. Plaintiff replied to the counterclaim. ■ [6] At -the trial, which was had on January 24, 1911, plaintiff showed title in the mortgagor, then introduced in evidence the mortgage and the record thereof, which mortgage was given to the Northwestern Mortgage Trust Company, -date October 30, 1889, and due December 1, 1894, to which defendant objected, for the reason that the alleged mortgage showed, on its face, that the same was more than six years -past due, and the presumption was that the same had -been paid, and the same , was surplusage as to one [224] of said offers. This objection was insufficient, and was properly overruled. [7, 8] Plaintiff then offered in evidence the purported note, secured by said mortgage, which appears to conform to the description thereof in the mortgage, and which purported to be indorsed by -the said Mortgage Trust Company to the plaintiff. To this offer defendant objected, “for tile reason .that the same is incompetent, immaterial, and irrelevant, and has not been properly identified, and that the same shows, on its face, that it is more than six years past due, and therefore barred under the statutes of limitations.” The last ground of objection was properly overruled, even had the action been one upon a promissory note alone. Respondent, after offering the note in evidence, was entitled to further opportunity -to rebut the apparent bar. This question cannot properly be raised by an objection to -the introduction of the note in evidence. Dielmann v. Citizens’ N. B., 8 S. D. 263, 66 N. W. 311. The other objections did not go to the extent of challenging the execution of the note, and were insufficient. Caledonia G. M. Co. v. Noonan, 3 Dak. 189, 14 N. W. 426; Park v. Robinson, 15 S. D. 551, 91 N. W. 344; Landis Mch. Co. v. Konantz Saddlery Co., 17 N. D. 310, 116 N. W. 333. Plaintiff then offered in evidence the record of the assignment of the mortgage from1 the mortgagee to the plaintiff, to which defendant objected as incompetent, irrelevant, and 'immaterial, which objection was properly overruled. Defendant then offered in evidence his tax deed and the certificate upon which the same was based. The tax deed among others, contained the following recitals: “Whereas J. A. McGee did, on the 6th day of April, 1900, produce to the undersigned, Thomas Kelley, treasurer of the county of Hand, in the state of South Dakota, a certificate of purchase in writing, * * * from which it appears F. Blackman did, on the 5th day of November, 1894, purchase, * * * and which land was sold to’ F. Blackman. * * * and it appearing that the said F. Blackman is the legal owner of said certificate of purchase, * * * and the said F. Blackman having demanded a deed for the tract of land mentioned in the said certificate: * * * Now, therefore, this indenture, made this 6th day of April, 1900, between the state of South Dakota, by Thomas Kelley, the treasurer of said county, of the first part, and said J. A. McGee, of the second part, witnesseth: That [225] the said party of the first part, for and in consideration of the premises and the sum of one dollar in hand- paid, hath granted, bargained and sold -and. by these presents doth grant, bargain, sell and conv.ey unto the party of the second part.” Defendant also offered evidence showing the payment of -taxes as alleged in the complaint, and also the taxes for 1910 on January 16, 191 x, and al-so. evidence showing that defendant had had possession of the land “by farming it now and ever since the filing of the tax deed”; that he had broken 135 -acres and removed the stone, and had converted if to cultivation from wild prairie land at a cost of about $3.50 per acre; and that the land was of increased- value, by reason- of such permanent improvements, of nor less than $3 nor more than $5 per acre. Upon the trial defendant, by leave of court, amended his answer by setting up possession and payment of taxes, under color of title, for more than 10 years. (See section 54, C. C. P.) [9] On September 21, 1911, the court heard a motion "by defendant for leave to -serve and file an amended and supplemental answer, which was denied on January 16, 1912. The only new matter suggested therein related to specific allegations that the mortgage was barred under the 15-year statute of limitations. Chapter 293, Daws 1909. Inasmuch as, prior to this statute, mortgages were not barred for 20 years, and as -this action was begun in 1910, and as by the terms of said act it was- not to be effective as to present mortgages until March, 1911, and inasmuch as this is not an action to foreclose a mortgage, we fail to see any abuse of discretion in the trial court in denying -defendant’s motion. On January 19, 1912, the court rendered findings of ■ fact and conclusions of law and judgment for plaintiff. - [10,11 ] The defendant’s tax deed was found to be void on its face, because it recited that defendant, McGee, produced a tax sale certificate to -the treasurer, and that one Blackman was then the .owner thereof, and that he (Blackman) had demanded a deed, and the deed was issued- to McGee. There was no error in this finding. The d-eed being void on its face, the three-year statute of limitations did not apply. Battelle v. Wolven, 22 S. D. 39, 115 N. W. 99. The court also found that defendant had not paid taxes [226] for ten years since the. date of his tax deed and before the commencement of .the action. The court found the amount due appellant for faxes and interest to be $387.45, but made no finding as to the value of the permanent improvements made by appellant. , In its conclusions of law the court held that respondent’s lien was superior to the rights of appellant, except as to taxes and interest thereon and improvements. The judgment provided that the lien of respondent’s mortgage was superior to the rights of appellant in the premises, “except that said mortgage lien is subject to the defendant’s lien for ■taxes by him paid upon said premises under said tax deed, together with interest thereon, amounting in' all to the sum of $387.45, and improvements; and in case of the failure of the plaintiff to pay said amount to the defendant within 60 days from this date the defendant may enforce the payment thereof in the manner provided by law.” [12] The failure to find the value of permanent improvements is assigned as error. This was not an action to recover possession of the1 property. Section 681, C. C. P. The mortgagee had no right of possession, but did have the right to 'litigate the question as to the validity of the tax deed; Under such decision the tax deed still stands as evidence of appellant’s lien and as security for the repayment of whatever sum may be found due appellant for permanent improvements, when, at the proper time, an accounting is 'had between appellant and respondent. Appellant’s right of possession will continue until his lien for such purpose is extinguished. ‘ Respondent will not be in position to call upon appellant for an accounting until she has shown herself entitled to possession of the property. The issue of permanent improvements, therefore, was not properly an issue in this case.. • We have carefully considered all of the assignments of error found in appellant’s brief, and are convinced that no error was committed by the trial court. The judgment and order denying a new trial are affirmed.