Bliss v. Waterbury

• Citation: 131 N.W. 731,27 S.D. 429
• Parties: BLISS v. WATERBURY.
• Decision Date: 31 May 1911
• Court: South Dakota Supreme Court

131 N.W. 731

27 S.D. 429

BLISS v. WATERBURY.

Supreme Court of South Dakota

May 31, 1911

Appeal from Circuit Court, Jerauld County; Frank B. Smith, Judge.

Action by C. J. Bliss against W. E. Waterbury. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed, and new trial ordered.

Preston & Hannett, for appellant.

T. J Spangler, for respondent.

HANEY J.

This action was tried before a referee who decided that the plaintiff is the owner and entitled to possession of the quarter section of land described in the complaint. Judgment having been according entered and a new trial refused, the defendant appealed.

The land in controversy was formerly owned by E. S. Waterbury who acquired title from the United States. Plaintiff's claim of ownership rests on a sheriff's deed, resulting from an execution sale under a judgment against the patentee and a deed from S. A. Ramsey, the grantee in the sheriff's deed. Defendant's claim of ownership rests on an unrecorded deed from the patentee conveying three-fourths of the land, and a contract with the patentee to convey the other fourth, executed and entered into prior to the rendition of the judgment against his grantor. To support his claim the plaintiff offered the sheriff's deed, which was objected to on the ground "that no proper foundation has been laid for the same, no evidence whatever of any judgment upon which a judicial sale has been made; no showing whatever that proper proceedings were had by the sheriff subsequent to the entry of said judgment, if any was ever entered, no showing that the time for redemption had expired from the time of said judicial sale, if any, prior to the issuing of said deed, or of the signature of the grantor therein named, and the further objection that there is no proof of the execution of this deed; that it is incompetent and immaterial." The statute provides: "Upon the expiration of the period for redemption the proper officer must make the purchaser, or the party entitled thereto, a deed of the real property sold. The deed shall be sufficient evidence of the legality of such sale, and the proceedings therein until the contrary is proved, and shall vest in the purchaser, or other party aforesaid, as good and as perfect title in the premises therein mentioned and described, as was vested in the debtor at or after the time when such real property became liable to the satisfaction of the judgment." Rev. Code Civ. Proc. § 384. As the sheriff's deed was properly acknowledged and recorded, it was admissible without further proof of execution. Id. § 533. Moreover, proof of its execution was subsequently supplied. Such deed, in connection with the United States patent, the deed from plaintiff's grantor and proof of notice demanding possession, established a prima facie case for the plaintiff. Baxter v. O'Leary, 10 S.D. 150, 72 N.W. 91, 66 Am. St. Rep. 702.

Plaintiff also offered "a certified copy of a decree entered in the case of E. S. Waterbury v. S. A. Ramsey, in the circuit court of Jerauld county, purporting to quiet the title of S A. Ramsey, as against E. S. Waterbury to the land in question, entered on the 8th day of October, 1901, and being duly certified by the clerk of the circuit court of Jerauld county," which was objected to "as incompetent and immaterial, and in no way binding upon the defendant in this action, he not being a party to said action in which said decree was rendered." This objection should have been sustained as the evidence was irrelevant and wholly immaterial at the time it was offered. But the error was not prejudicial as the fact which it tended to prove was disclosed by the cross-examination of E. S. Waterbury, and it was relevant and material to the issue of estoppel hereafter considered.

E. S. Waterbury, the patentee, called as a witness for the defendant, having testified concerning the execution of the deed and contract relied on by the defendant, was asked this question: "Mr. Waterbury, along in 1900 or 1901, you brought suit against Mr. Ramsey in the circuit court of Jerauld county, in which you alleged you were the owner of this land, did you not, and seeking to cancel the sheriff's deed, which has been offered in evidence as 'Exhibit B'?" which was objected to "as incompetent, immaterial, and not proper cross-examination"; and which objection was overruled. The witness answered, in effect, that such a suit had been brought, but that he was absent from the county, and did not know what was in it. It certainly was proper cross-examination to interrogate this witness regarding conduct on his part apparently inconsistent with the testimony he had given. It is true the method pursued was unfair. The witness should have been shown the complaint in the action referred to before being examined concerning its contents. But it does not appear that this objection to the method of procedure was called to the attention of the referee.

Defendant offered evidence tending to prove the execution and delivery for a valuable consideration, in April, 1887, of a deed to him from the patentee, conveying three-fourths of the land, signed by the patentee and wife, which was not acknowledged or recorded, and which was subsequently lost or destroyed. He also offered evidence tending to prove a...