124 N.W. 721 (S.D. 1910), Blair v. Mayer

Citation:124 N.W. 721, 24 S.D. 563
Opinion Judge:WHITING, P. J.
Party Name:BLAIR et ux. v. MAYER et al.
Attorney:Gaffy & Stephens, for appellant. Goodner & Goodner, for respondents.
Case Date:January 19, 1910
Court:Supreme Court of South Dakota
 
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Page 721

124 N.W. 721 (S.D. 1910)

24 S.D. 563

BLAIR et ux.

v.

MAYER et al.

Supreme Court of South Dakota

January 19, 1910

Appeal from Circuit Court, Hughes County.

Action by Seymour D. Blair and another against Sarah A. Mayer, executrix of L. J. Mayer, deceased, and others. From a judgment for plaintiffs and an order denying a new trial, defendant executrix appeals. Affirmed.

Gaffy & Stephens, for appellant.

Goodner & Goodner, for respondents.

WHITING, P. J.

This action was brought to quiet the title to a certain tract of land in Hughes county. It appears that the plaintiffs were, at the time this action was brought, and had been at all times hereinafter mentioned, husband and wife. The husband in 1890 filed a homestead claim upon the land in question, under the general homestead laws of the United States. He made final proof in March, 1895, receiving the final receiver's receipt, which showed that the land was taken as a homestead. Patent issued to him in 1902. In October, 1895, the husband, by warranty deed, conveyed his title to this land to his wife. Over defendants' objection it was shown that this deed was without consideration, was executed without the wife's knowledge, and that it was given solely to protect the wife in case of the husband's death. In 1892 the plaintiffs executed a note secured by a mortgage on another piece of real estate. This mortgage was foreclosed in 1895, and on special execution the land mortgaged was sold, and deficiency reported by sheriff. In 1897 the judgment creditor caused general execution to issue, and same was levied on the land in suit as the property of

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plaintiffs; nothing connected with the levy or return thereon showing that the property was levied on as the separate property of either plaintiff. This land was sold under such execution, and afterwards sheriff's deed issued, and through a chain of conveyances any rights that were acquired under such sheriff's deed passed to the appellant herein. Upon the trial findings and decree entered for plaintiffs; and a motion for new trial having been denied, the defendant Sarah A. Mayer appealed. It stands admitted that she is the sole party in interest as defendant.

The respondents claim that no title passed by the purported sheriff's sale, for the reason that the land could not be sold for the debt contracted before the patent issued. Further, they claim that the evidence sustains...

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