Farr v. Semmler

• Decision Date: 17 November 1909
• Citation: 24 S.D. 290,123 N.W. 835
• Parties: C. W. FARR, Plaintiff and appellant, v. KAROLINA SEMMLER et al. Defendants and respondents.
• Court: South Dakota Supreme Court

24 S.D. 290, 123 N.W. 835 (1909)

C. W. FARR, Plaintiff and appellant v KAROLINA SEMMLER et al.

Defendants and respondents

South Dakota Supreme Court

Appeal from Circuit Court, Douglas County, SD

Hon. E. C. Smith, Judge

Affirmed

Walker & Gurley

Attorneys for appellant.

French & Orvis

Attorneys for respondents.

Opinion filed Nov. 17, 1909

McCOY, J.

This is a suit, commenced in September, 1906, to quiet title to a certain quarter section of land situated in Douglas county. There is practically no dispute about the facts. The question is what effect should be given to the evidence. From the record it appears that on the 20th day of April, 1888, one Albert N. King was the owner in fee of the land in question and on that day gave two certain mortgages thereon; one to Lombard Investment Company for $550, due May 1, 1893, filed for record April 29, 1888, and one to MacLagen & Pierce for $100, due November 1, 1890, and filed for record June 20, 1888: that the last mentioned was a commission mortgage, and by its terms made subsequent and junior to the Lombard mortgage. The plaintiff claims title under a foreclosure sale of the MacLagen & Pierce mortgage made August 8, 1890, the certificate on such sale being issued to one John T. M. Pierce, the purchaser. Thereafter one Edmund A. Bruce obtained judgment in the circuit court against said Pierce, and levied on and sold the interest of said Pierce in and to said land, and on October 16, 1896, a sheriff's deed was issued to Bruce on such execution sale. On December 4, 1895, said John T. M. Pierce gave to Bruce a quitclaim deed of all his right, title, and interest in and to said land. On July 10, 1906, Bruce executed and delivered to the plaintiff, C. W. Farr, a quitclaim deed of all his right, title, and interest in and to said real estate. No redemption was ever made from either the mortgage or execution sale. On the trial the plaintiff offered in evidence an assignment of the certificate of sale under the MacLagen & Pierce mortgage, executed by Edmund A. Bruce to plaintiff, and bearing date December 4, 1906, and to which offer the defendants objected because it had not been shown that Bruce was the owner of said certificate which was issued to Pierce, and that said certificate was incompetent and immaterial, and no foundation had been laid. The objection was sustained, and the plaintiff excepted. Plaintiff also offered in evidence a sheriff's deed, under the MacLagen & Pierce foreclosure, given by the sheriff to the plaintiff on December 8, 1906, and to which offer the defendant objected because it was made subsequent to the commencement of this action; that no assignment of sheriff's certificate of sale given to Pierce has been proved to Farr, to whom the deed was given. The objection was sustained, and the plaintiff excepted.

The defendants claim title under a foreclosure sale by advertisement of the Lombard Investment Company mortgage, made October 5, 1895. On May 7, 1888, an assignment of the Lombard Investment Company mortgage was made to Rhoda F. Kinsman, executed and acknowledged by Louis Lombard, second vice president of the Lombard Investment Company, which assignment was recorded August 20, 1895. Rhoda F. Kinsman became the purchaser on such sale, and on February 17, 1897, no redemption having been made, a sheriff's deed was issued and given to Rhoda F. Kinsman, which was duly recorded February 19, 1897. That thereafter, on September 12, 1898, in consideration of $65o by warranty deed, Rhoda F. Kinsman conveyed the land in question to the defendant Karolina Semmler, and which deed was duly recorded October 28, 1898. It further appears that defendants and their grantor, Rhoda F. Kinsman, paid all taxes assessed against said land for the year 1895, and all subsequent years until the commencement of this action, and including the year 1905. That prior to February 11, 1897, the land in question was vacant and unoccupied, but on that date was taken possession of by Rhoda F. Kinsman, and by her peaceably possessed until she conveyed the same to defendants September 12, 1898, at which time the defendant took possession and commenced the improvement thereof. That defendants have built about two miles of fence on said land, and broken and reduced to a state of cultivation a large portion thereof, and have picked and hauled some 500 loads of stone therefrom. That at the time defendants purchased said land in September, 1898, the same was worth not to exceed $650, and that at the time of the commencement of this action the said land was worth $6,000. That the defendants and Rhoda F. Kinsman believed they had good title, and had no actual notice of claim made thereto by plaintiff, or any other person, until about the time of the commencement of this action. That on September 18, 1902, defendants gave a mortgage on said land to one Shepard for $1,200, and which mortgage is still unpaid.

Findings and judgment in the circuit court were in favor of defendants. Plaintiff brings this cause to this court, alleging certain errors to have occurred on the trial, and also that the evidence is insufficient to sustain the findings and judgment. It is contended on the part of plaintiff that the court erred in sustaining the objections to the introduction in evidence of the assignment of the certificate of sale, given by Bruce to plaintiff, and sheriff's deed issued to plaintiff, under the MacLagen & Pierce foreclosure sale; while the defendant contends that plaintiff failed to show ownership in himself, and that the circumstances of the case are sufficient to estop plaintiff from maintaining this action regardless of Whether the evidence on part of plaintiff was sufficient to show plaintiff's ownership. We are of the opinion that in this last contention the defendants are in the right, and that plaintiff, conceding that he has sufficient interest in the land in question to maintain an action of this character, still, by reason of the equitable estoppel shown, would not be permitted to maintain this action.

Under the statute of this state a mortgage upon real estate is not a conveyance of title, but only a lien upon the land as security for a debt. After a foreclosure sale the certificate still remains a lien only, until the time for redemption has expired, and no title is transferred until the sheriff's deed has been duly issued. It is the sheriff's deed that invests the purchaser at mortgage sale with the mortgagor's title. Section 653-662, Code Civ. Proc.; McGregor v. Pierce, 17 S.D. 51, 95 N.W. 281. It is clear that at the time this action was commenced plaintiff had no title to the land in question, of record or otherwise. Neither at any time did plaintiff's grantor, Bruce, ever have title to said land. The mortgage under which plaintiff claims by its express terms provides that it should be junior and subsequent to the mortgage under which defendants claim. This junior mortgage was foreclosed first, and a certificate of sale issued to John T. M. Pierce, the purchaser, on August 8, 1890, and a deed might have been issued under this foreclosure sale on...