Baxter v. O'Leary

• Decision Date: 20 July 1897
• Citation: Baxter v. O'Leary, 10 S.D. 150, 72 N.W. 91 (S.D. 1897)
• Parties: BAXTER et al. v. O'LEARY et al.
• Court: South Dakota Supreme Court

72 N.W. 91

10 S.D. 150

BAXTER et al. v. O'LEARY et al.

Supreme Court of South Dakota

July 20, 1897

Appeal from circuit court, Lawrence county; A. J. Plowman, Judge.

Action by Lee R. Baxter, with and on behalf of Thomas W. Thompson and another, against Cornelius O'Leary and others. From a judgment entered on a verdict directed in favor of defendants, plaintiffs appeal. Reversed.

Rice & Polley, for appellants. McLaughlin & McLaughlin, Joseph B Moore, and William R. Steele, for respondents.

HANEY J.

This is an action to recover possession of a mining claim. Plaintiffs allege that the claim was located as the Snowstorm lode by Joseph Wilder, in 1877; that he conveyed it by deed to William Bull; that Bull conveyed it by deed to the Milwaukee & Black Hills Mining Company in 1879; that on April 13, 1886 it was sold on execution to Lee R. Baxter, judgment plaintiff in an action at law, to whom a sheriff's deed was issued November 13, 1890; that on April 13, 1886, Baxter entered into a contract with Charles F. Thompson, whereby he sold the claim to him for $568.43, which consideration was then paid by said Thompson; that Baxter placed Thompson in possession of the claim, and authorized him to have the annual assessment work thereon performed; that Baxter and Thompson caused the requisite work to be done during 1886; that Baxter conveyed the claim by deed to Thompson, January 2, 1891; that Thompson died intestate in May, 1892, leaving as his sole heirs at law the plaintiffs Thomas W. Thompson and Carrie S Pierce; that on November 13, 1893, the county court made an order of final distribution of the residue of the Thompson estate, including all the property of every kind belonging thereto, to said heirs at law, share and share alike; that while Baxter was seised and possessed and entitled to the possession of the claim, on January 1, 1887, defendants O'Leary and Collins, without right or title, wrongfully and unlawfully entered into and upon the same, and wrongfully and unlawfully ousted and ejected Baxter therefrom, and still wrongfully and unlawfully withhold possession of the premises from plaintiff; that when the deed from Baxter to Thompson was executed and delivered the defendants wrongfully and unlawfully held possession, claiming title, for which reason Baxter is made a party plaintiff. There are other allegations in the complaint, but enough have been given to explain the questions of law involved. Defendants practically deny all of the foregoing allegations, and allege that no assessment work was done by any one in 1886, and that the ground in dispute was relocated as the Lackawanna lode, January 1, 1887; that since that time they have been in continuous possession of the claim, have each year performed the required work thereon, and that during such time the plaintiffs have done no work thereon, except a few days' work in 1887; that the Snowstorm lode was of little value in 1887, but because of the sums expended and improvments made by defendants the claim is now worth $10,000; that neither plaintiffs nor Charles F. Thompson ever took any legal steps to assert any title to the ground in dispute until this action was commenced; that by reason of their long silence and acquiescence, and by permitting defendants to develop the same, plaintiffs are estopped to claim any title thereto. Plaintiffs introduced evidence tending to prove the original location and conveyances from Wilder to Bull, and from Bull to the Milwaukee & Black Hills Mining Company, and that the required assessment work was done in 1886. They then offered the sheriff's deed to Baxter, which was rejected, for the reason that the record failed to show any confirmation of the sale; and, having rested, defendants moved the court to direct a verdict in their favor "upon the ground that plaintiff had failed to connect himself in any way with the title to the Snowstorm lode," which motion was sustained, and defendants had judgment accordingly.

The contention of defendants that plaintiff's evidence shows a failure to do the required amount of assessment work in 1886, and therefore they cannot recover under any view, is untenable. Such is not the fair and reasonable inference to be drawn from all the evidence, nor was such failure of proof assigned as a ground of defendant's motion to direct a verdict. It does not appear from the abstract when this action was commenced, nor was the question of estoppel raised by the motion to direct the verdict; hence the only question presented by this appeal is whether the court erred in excluding the sheriff's deed and in directing a verdict for defendant for the reason that plaintiff failed to connect himself with the title. Technically, the deed should have been received, as the statute makes it prima facie evidence of the legality of the sale; but as the parties agreed that thorough search had been made among the records, and no order of...