Battelle v. Wolven

• Decision Date: 05 February 1908
• Citation: 22 S.D. 39,115 N.W. 99
• Parties: BATTELLE v. WOLVEN et al.
• Court: South Dakota Supreme Court

22 S.D. 39

115 N.W. 99

BATTELLE

v.WOLVEN et al.

Supreme Court of South Dakota.

Feb. 5, 1908.

Appeal from Circuit Court, Hand County.

Action by Charles Battelle against Edwin J. Wolven and another, as executors of the will of John W. Wolven, deceased. From a judgment for plaintiff, defendants appeal. Judgment, and order denying new trial, affirmed.B. A. Knight and J. H. Cole, for appellants.

S. A. Keenan, for respondent.

CORSON, J.

This is an action instituted by the plaintiff to quiet title to a quarter section of land in Hand county, of which he claims to be the owner in fee, deriving his title through a United States patent. The defendants claim title to the premises under and by virtue of a tax deed executed by the county treasurer of Hand county. The complaint is in the usual form, and the defendants, after making certain denials of the allegations of plaintiff's complaint, allege that on the 28th of December, 1896, the county treasurer of Hand county duly executed and delivered to one F. Blackman, through whom these defendants claim title, a tax deed for said premises in pursuance of a tax sale held in said county on the 6th day of November, 1893, for the sale of taxes due and delinquent on said land for the year 1892, that more than three years had elapsed since the filing of said tax deed for record prior to the commencement of this action, and that the defendant and his grantors have for the past 10 years continuously paid all legal taxes against said land and been in actual possession thereof under and by virtue of said tax certificate and deed, holding the same adversely to the plaintiff and his grantors and assignors, and that by reason thereof this action is barred by both the 3-year and 10-year statute of limitations. The case was tried to the court without a jury, and findings and judgment being in favor of the plaintiff, the defendants have appealed.

Counsel for the appellants in their brief present the question to be considered as follows: “It will be noticed that this is an action simply to determine the validity of the certain tax deed set out in the printed abstract herein, under which appellants claim title to the land in controversy adversely to the respondent.” The learned circuit court in its findings and conclusions of law took the view that the said tax deed was void on its face, and hence that the 3-year statute of limitations did not apply to the same on account of the following recital contained therein,” and the said F. Blackman, having demanded a deed to the tract of land mentioned in said certificate, and which was the least quantity of the tract above described...