Cornelius v. Ferguson

• Decision Date: 02 December 1903
• Citation: 97 N.W. 388,17 S.D. 481
• Parties: MARGARET E. CORNELIUS, Plaintiff and respondent, v. ALLIE E. FERGUSON et al., Defendant and appellant, and Elsie J. Lynch, Intervenor.
• Court: South Dakota Supreme Court

17 S.D. 481

97 N.W. 388

MARGARET E. CORNELIUS, Plaintiff and respondent, v. ALLIE E. FERGUSON et al., Defendant and appellant, and Elsie J. Lynch,

Intervenor.

South Dakota Supreme Court

Appeal from Circuit Court, Beadle County, SD

Hon. A. W. Campbell, Judge

Former decision reversed

A. W. Wilmarth

Attorneys for appellants.

W. A. Lynch

Attorneys for respondents.

Opinion filed December 2, 1903

(See 16 SD 113, 91 NW 460)

FULLER, J.

Whether the findings of fact support the conclusions of law and the judgment quieting in the intervenor the title to certain lots in the city of Huron, is the only question presented by this appeal now before us on rehearing. In Cornelius v. Ferguson,(1902), we considered a certain tax deed, upon which appellants wholly rely, to be a part of one of the findings, and by construing the same with another finding of fact, the deed was held void upon its face, as adjudged by the trial court. These findings of fact, so far as material to questions relating to the tax deed, are as follows:

“Third. That on the 1st day of July, 1894, the treasurer of Beadle county executed to the defendant, Allie E. Ferguson, a tax deed for the aforesaid described premises and other real estate, and 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, a copy of which deed is hereto attached, marked ‘A’ and made a part hereof. …”

“Eighth. That the lots described in the complaint, together with other property, were, at the annual Beadle county tax sale, on Nov. 7, 1890, for taxes of the year 1889, sold in bulk for the gross sum of $59.55, as found in the third finding hereof. …”

“Tenth. That said lots were subject to assessment and taxation for the years 1889 to 1898, both inclusive, and were regularly and duly assessed for taxes during all of said years.”

While admitting the execution of the tax deed set out in the answer, and thus made a part of the judgment roll, independently of the findings of fact, respondents allege in their reply that such deed shows that the property was sold in bulk for one gross sum, and is therefore void upon its face. Whenever the validity of any written instrument is at issue and a conclusion of law concerning it is essential to a determination of the case, there can be no objection to incorporating the same, or at least the assailed portions thereof, into the findings of fact; and such is the common practice. Without further discussion, we therefore adhere to our former conclusion that the deed is clearly before us for consideration. Independently of an unwarranted deduction that it appears from the face of the deed that the property in dispute was unlawfully sold in bulk for a gross sum in excess of the legal amount collectible, there is nothing to support the conclusion that the deed is void upon its face. The recital in the third finding “that it appears from the face of the deed itself that all said property described therein was sold … in bulk for one gross sum of $59.55” is a conclusion of law not justified by the deed made a part of such finding; and the eighth finding, containing the expression “sold in bulk for...