Frum v. Weaver

• Decision Date: 29 August 1900
• Citation: 13 S.D. 457,83 N.W. 579
• Parties: SOLOMON B. FRUM, Plaintiff and respondent, v. WALTER B. WEAVER and CATHERINE WEAVER, Defendants and appellants.
• Court: South Dakota Supreme Court

13 S.D. 457

83 N.W. 579

SOLOMON B. FRUM, Plaintiff and respondent, v. WALTER B. WEAVER and CATHERINE WEAVER,

Defendants and appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Hyde County, SD

Hon. Loring E. Gaffy, Judge

Affirmed

John L. Pyle

Attorney for appellants.

L. E. Whitcher

Attorney for respondent.

Opinion filed August 29, 1900

HANEY, J.

This appeal is from an order overruling defendants’ demurrer to the complaint upon the ground that it does not state a cause of action. The first paragraph of the complaint is as follows: “That plaintiff is, and ever since the 6th day of January, 1898, has been, the legal holder and owner of the southeast quarter of section thirty-one, in township one hundred and thirteen north, of range severity-two west of the 5th P. M., in Hyde county, South Dakota, in fee simple, and is entitled to the immediate possession, but the defendants have been during the time since said January 6th holding and occupying said premises as a homestead, and claim some right, title, and interest therein by virtue of a certain so-called ‘treasurer’s sale deed,’ executed by C. P. Swanson, as county treasurer, bearing date March 25, 1897, without plaintiff’s consent, and against plaintiff’s will.” The complaint also contains an alleged tender of the taxes paid by defendants, and certain defects in his tax title. The paragraph above quoted constitutes in itself a cause of action. Male v. Brown,(1898). The allegations of the complaint relating to defects in defendants’ tax title are not inconsistent with plaintiff’s claim of ownership. They are not necessary to his cause of action, and may be treated as surplusage. Trotter v. M. R. F. Life Ass’n, 62 AmStRep 887 (1897). Plaintiff having alleged that he is the owner of the premises, and that defendants claim some right, title, and interest therein, it devolves upon defendants to allege and prove the facts upon which their claim is based.

Defendants contend that the plaintiff cannot maintain this action, because the complaint shows that they were in possession under a tax deed, adverse to his grantors, at the time his title was obtained. The law relied upon reads as follows:

“Every grant of real property, other than one made by the state, or under a judicial sale, is void if at the time of the delivery thereof such real property is in the actual possession of a person claiming under a title adverse to that of the grantor.”

Comp. Laws, § 3303. This...