Cornelius v. Ferguson

• Decision Date: 02 July 1902
• Citation: 91 N.W. 460,16 S.D. 113
• Parties: CORNELIUS (LYNCH, Intervener) v. FERGUSON et al.
• Court: South Dakota Supreme Court

16 S.D. 113

91 N.W. 460

CORNELIUS (LYNCH, Intervener)

v.FERGUSON et al.

Supreme Court of South Dakota.

July 2, 1902.

Appeal from circuit court, Beadle county.

Suit by Margaret E. Cornelius against Allie E. Ferguson and another, Elsie Lynch intervening. From a decree for intervener. defendants appeal. Affirmed.A. W. Wilmarth, for appellants. W. A. Lynch, for respondents.

CORSON, J.

This was an action by Margaret E. Cornelius, as plaintiff, to quiet her title to certain lots in the city of Huron, and for a judgment awarding her possession of the same. During the pendency of the action, Elsie J. Lynch acquired the title to the lots, and filed a complaint in intervention; adopting the complaint of the plaintiff, Cornelius, as her complaint in the action. The defendants claimed title to the property under and by virtue of a certain tax deed issued to Allie E. Ferguson on the 11th day of April, 1894. Findings and judgment were in favor of the intervener, Elsie J. Lynch, and from this judgment the defendants appeal. No bill of exceptions was settled, and no motion for new trial made; hence the only question before us is, do the findings support the conclusions of law and the judgment?

In the court's third finding of fact it finds “that it appears from the face of the deed itself that all said property described therein was sold, at the tax sale in pursuance of which said tax deed was issued, in bulk, for one gross sum of $59.55,” and it annexed a copy of the tax deed as a part of the said finding. The court also, in its eighth finding of fact, finds “that the lots described in the complaint, together with other property, was, at the annual Beadle county tax sale on November 7th, 1890, for the taxes for the year 1889, sold in bulk for the gross sum of $59.55, as found in the third finding hereof, but that the amount of tax due on each of said lots, including interest and penalty on the day of the sale, was as follows: ***” The court then proceeds to find the amount of taxes and penalty upon each of said lots, making a total of $51.42, and concludes, “And for which several amounts said lots should have sold for if they had been sold separately.” And the court concludes, as matter of law, that the said tax deed was void upon its face. It is contended, on the part of the appellants, that the court erred in holding the tax deed void upon its face and that, as said tax deed is made a part of the findings, that question can be reviewed by this court notwithstanding the absence of a bill of exceptions and the failure to make a motion for a new trial in the court below. It is insisted on the part of the respondent that, if this court reviews the tax deed annexedto and made a part of the third finding, it will be reviewing the evidence, which this court cannot do unless there has been a motion for a new trial. But we are inclined to take the view that, as a copy of the tax deed is made a part of the finding, we may review it in considering the effect of the finding.

Independently of the facts found in the eighth finding, it is not entirely clear that the deed is void on its face. The material recitals in the deed are as follows: “From which it appears that _____, on the 7th day of November, 1890, purchased at public auction _____ tracts, lots, and parcels of land in this indenture described, and which lots, parcels, and tracts of land were sold to the said...