Rosekrans v. Wagner , 29 S.D. 181 ( 1912 )

HANEY, J.

This is an action to determine adverse claims to a quarter section of land in Hyde county; the plaintiff alleging she is the owner in fee and entitled to possession as grantee of the original patentee, Jasper E. King.

The defendant -alleges in his answer “that he is the owner in fee simple of the premises described in the plaintiff’s complaint, and was so ad-judged and decreed in an action in the circuit court within and for the county of Hyde, S-. D., wherein this defendant was the assignee of the plaintiff, Olin Grindall, therein, in the action entitled 'Olin Grindall v. Jasper F. King,’ involving the premises- described in the complaint, in which action the said Jasper F. King was the same Ja-sper F. King who is the plaintiff’s grantor of the premises involved, and- this defendant alleges that in the said action the said circuit court made and entered its jud'g- ' ment and decree upon the 9th day of December, A. D. 1905, and adjudgiving and -decreeing that this -defendant was the absolute and unqualified -owner of said premises, and- that any and all -claims of the said defendant, Jasper F. King, this plaintiff’,s grantor, shall not be considered a cloud upon the title of the said plaintiff’s grantee, James N Wagner, which isaid decree was -duly filed, served, and recorded in the office of -the said circuit court, a copy of which i-s hereto attached and- made a part hereof; that the said judgment is still the judgment of the said circuit, court; that the same has never been appealed from and has never been modified or amended, and that the time for appealing' therefrom has elap-'e-d by the statute of limitations; that the plaintiff in this action and her agents and attorneys had -full knowledge of the existence of the foregoing alleged fac-ts in connection with tire abov - -- ■ ed action, the judgment, and the aforesaid- decree, and tor k 'nr 'urported title with full knowledge of the rights of the de ■ ”t: and specially denies each and every allegation of the co” 'aim not herein denied, admitted, or qualified.” i ’ e trial court found the facts to be as follows: That title tn ’ ^ 'a”d in controversy ■- as acquired by Jasper -F. King from the States May z 189a, by patent recorded September ig, 18 T’~at King conveyed the same to the plaintiff August 17, ico'd bv a deed recorded September 8, 1906, and that the plaintiff is ’1 ue owner in fee thereof. That on May 12, 1899, a tax dee 1 - t-sued to George H. Pease, which was recorded July 6, - - T1iat Pease coweved all his interest under tax deed to Oi; ’-"'dah, bv nuitcGi--’ deed, June 21, 1900, which was recorded July 6, igoo, and that Grindall and wife conveyed all their interest under the tax deed to the defendant by quitclaim deed, May 5, 1903, which was recorded May 19, 1905. “That the said treasurer’s tax deed for said land is void upon its face, and states that Hyde county did on the 4th day of November, 1895, purchase at public auction, at the door of the courthouse in said county, the tract, parcel, or lot of land above described, which lot was sold to Hyde county for the sum of $22.95. And the. said deed also states on its face ‘which was the last [least] quantity of the tract above described that would sell for the amount due thereon for taxes, costs and charges as above specified.’ That the defendant, James A. Wagner, and Inis grantors have not paid the taxes assessed against said land for 10 successive years before the sale of sa-id land for taxes, but that they have paid the following taxes for the years herein stated, and in the amounts stated, as shown by the books of the treasurer of Hyde county, and that the interest on the same down to this date is as follows: * * * Total, $337.01. That about the 1st day of August, 1904, an action was begun in this court by the said Olin Grindall, as plaintiff, against the said Jasper F. King, as defendant, and that the purpose of said action was to quiet the title in the plaintiff upon the land herein described. That no lis pendens was filed in said action at the time the suit was started, and that after the beginning of said action the said Olin Grindall conveyed all his interest in said land to this defendant, James A. Wagner, as set forth in paragraph two herein. That the case was tried to the court at the November term, 1905, of .this court, and that the said James A. Wagner was not made a party to the said suit, and was not bound by said action. That a decree was entered in the said action on the 6th day of February, 1906, in which, among other things, it was decreed by this court that the tax deed set forth herein was illegal and void and conveyed no interest to the said George H. Pease and his grantees, except a lien for the taxes paid by them. That it was also decreed that James A. Wagner, as grantee of the said Olin Grindall, have judgment against the defendant, Jasper F. King, for $248.06, being the amount due for the taxes paid on said land by the said James A. Wagner and his grantors, as shown by the treasurer’s books of Hyde -county, and interest to that date. And it was further decreed therein that the said judgment should be paid within 60 days from the entry of said decree. The court further finds- that before the expiration of the said 60 days Jasper F. King, by -his attorneys, deposited with the clerk of this court a -check for the said $248.96 and demanded that the said James A. Wagner turn into the clerk of -court’s office the tax certificates outstanding against said land, but that the said James A. Wagner neglected and refused to turn in to- the -clerk of this -court any of the -tax -certificates- -outstanding against said land, and refused to be bound- by the s'aid decree, and did not accept the ■check deposited by the said Jasper F. King, and- that said decree, entered February 6, 1906, never became a final adjudication of the rights of the parties in said land, and -did not determine the rights of the parties to this -suit in said land.”

From the facts so found, the -court concluded that the plaintiff is the owner of the land and entitled to its- possession; that the tax deed is void on its face; that the defendant is entitled to a’ lien on the land for -the amount of -taxes paid by himself and his grantors, with interest; ■amounting to $337.01; that the -defendant has no other right, title, or interest in or to -the land; that the plaintiff is entitled to a decree quieting title in her, as against the -defendant and all persons claiming through or under him, upon payment -into- -court, for -the defendant, -o-f the sum of $337.01. A judgment -re-citing the payment of this sum into- -court having been accordingly entered, the defendant -appealed therefrom, and from an -order denying -his ‘application for a new trial.

[1] The overruling of -defendant’s objection- to the admission of the -check -deposited with the clerk by King’s attorney in the former action was not reversible error, for the reason that it merely tended to prove a fact established by the direct examination of the celrlc, testifying as defendant’s witness.

As the. sufficiency c-f -the evidence to justify the findings of fact is not challenged in the record or -discussed in appellant’s brief, the only other matter, if any, properly presented for review is whether su-ch findings sustain the judgment.

[2] As we understand the argument of counsel, it is contended that the deposit of the check 'did not meet the requirement of the former judgment as to payment or .tender of the amount expended by the holders of the tax title; that upon the expiration of 60 days the judgment became a final adjudication, vesting, title to the land in Wagner; and that the judgment thus resulting from King’s failure to deposit the required sum in money is a complete bar to the present action. The contention is not tenable. “The character of conclusiveness, by way of estoppel, attaches only to final judgments, not to interlocutory judgments or orders, which remain under the control of the court, except where they dispose finally of some distinct branch or part of the case, or are appealable as being orders affecting the substantial rights of the parties.” 23 Cyc. 1232. The applicable principle is the same as that announced by this court when it decided that an order sustaining a demurrer to the complaint, on the ground that it did not state a cause of action, which granted the plaintiff 10 days to serve an amended complaint, and which provided “if the plaintiff shall not serve his amended complaint within said time this action shall be dismissed,” did not preclude the plaintiff from maintaining another suit involving the same cause of action. Cooke v. McQuarters, 19 S. D. 361, 103 N. W. 385.

[3] Assuming Wagner should be regarded as a party to the former action, the judgment, construed in the light most favorable to' his present contention, determined that his tax title was invalid, that King, the present plaintiff’s grantor, was the owner of the land, but required King’ to pay or tender the sums expended by the holders of the void tax title, and declared fine consequences of his failure to do so within the specified time. In other words, as suggested by counsel for appellant, King wa-’ given 60 days -in which to. redeem the property. Whether or not he would redeem was not known when the former judgment was rendered. Whether he did redeem was not determined when the present action was commenced. The former judgment, by its express terms, reserved to the circuit court authority to extend the period of redemption. In 'substance, the former decision declared King should have the land upon complying with the imposed condition. When the present action was commenced, no court had determined whether he had complied with such' condition; and consequently no court had decided he was not entitled to the land, or that title -thereto -had vested in the present defendant. Counsel f-or appellant co-ncedéd this when he introduced evidence on the trial -of the present -action to prove that the plaintiff’s gran-tor had failed to -comply with -the requirement of the- former judgment. Clearly, then-, the issue in this action- is- whether -the plaintiff, having succeeded to King-’-s interest in the property, shall be allowed to redeem, notwithstanding her grantor’s failure to comply with the provision- of the former judgment, if he did fail to comply therewith. Even if King had taken no- steps--to redeem, the circuit court, upon motion in- the former action, might have allowed him or his successor in- interest to- -do so after the expiration of -the 60 -days specified in its former judgment. What might have been -done by a motion in the former action -certainly may be d-one in -this. Therefore, without deciding whether the deposit of the check and Wagner’s refusal to accept it, without objection -to the form of the tender, operated .to effect a redemption, we have no hesitancy .in- -holding that the fa-cts, as found by the trial court in the present action, fully justify its manifestly just and equitable -conclusions.

Its judgment -is affirmed.