Hannahs v. Provine

• Decision Date: 26 October 1911
• Citation: 133 N.W. 53,28 S.D. 200
• Parties: HANNAHS v. PROVINE et al.
• Court: South Dakota Supreme Court

133 N.W. 53

28 S.D. 200

HANNAHS v. PROVINE et al.

Supreme Court of South Dakota

October 26, 1911

Appeal from Circuit Court, Potter County; Loring E. Gaffy, Judge.

Action by George B. Hannahs against W. W. Provine and others prosecuted after the death of defendant named against Rebecca M. Provine, as special administratrix. From a judgment for insufficient relief, plaintiff appeals. Modified and affirmed.

Robert B. Fisk, for appellant.

A. L Ellis, A. Gunderson, and D. J. O'Keeffe (Gaffy, Stephens & Fuller, of counsel), for respondent.

HANEY J.

This is an action to determine adverse claims to a quarter section of land in Potter county. A judgment quieting title in the plaintiff, upon compliance with certain conditions, having been entered, and the plaintiff's application for a new trial denied, this appeal was taken.

Though the cause was tried in October, 1903, and judgment entered on January 27, 1904, it was not submitted in this court until June 11th of the present year-an apparently unreasonable delay, for which this court is not responsible. The defendants originally were W. W. Provine, Rebecca M. Provine his wife, and A. L. Ellis. Mr. Provine having died after the appeal was taken, the special administratrix of his estate was substituted as one of the parties defendant. Defendant Ellis' claims having been abandoned, the only rights requiring consideration are the plaintiff's and decedent's, as they appear from the record to have existed when the cause was tried in the circuit court.

The plaintiff states in his complaint: "(1) That he is the owner, in fee simple, of the following described parcel or tract of land, to wit: *** (2) That the defendants *** claim some right, title, or interest in or to the said land and premises, adverse to the right, title, and interest of the plaintiff." All these allegations not expressly admitted are denied by decedent's original answer, which "admits that this defendant claims some right, title, or interest in and to said land and premises, and alleges that such interest is a fee-simple title in this defendant, by virtue of a tax deed duly issued thereon to his grantor, and the deed from the grantee in such tax deed." And as a second and further defense it is alleged that he "is the owner in fee simple of said land by virtue of payment of taxes thereon, and that he and his grantor, while in possession of said premises, have paid taxes thereon for more than 10 years." Plaintiff replied, denying "each and every allegation in said answer and counterclaim contained."

During the progress of the trial, the plaintiff having introduced a patent from the United States to one Meisenbach and a warranty deed from Meisenbach and wife to himself, conveying the land in controversy, the defendant having introduced evidence in support of decedent's tax title, the plaintiff having introduced evidence in rebuttal tending to invalidate such title, and the court having ruled that such tax title was invalid, decedent was allowed to serve and file an amended answer, wherein he alleged, by way of counterclaim, in addition to the allegations of his original answer, that he and his grantor paid the taxes on the land described in the complaint for each of the years from 1891 to 1902, both inclusive, stating the amount for each year, that his grantor paid $12.15 as expenses in taking out the tax deed, that he and his grantor made valuable improvements on the premises in good faith and under color of title, stating the character of the improvements and the cost of each, that all such improvements are still on the land and worth what they cost, and that none of the sums so expended for taxes and improvements have been repaid by the plaintiff. The trial was postponed for one day to enable the plaintiff to meet these issues. When the trial was resumed the plaintiff objected to the introduction of any evidence under the amended answer, for the reason that no opportunity had been given to meet the proof that might be introduced under it, which objection was, in effect, overruled; the record stating it was "simply ignored."

This objection was properly overruled. It did not challenge the sufficiency of the amended answer in any respect. If the plaintiff was not prepared to proceed with the trial, he should have applied for a further postponement. The amendment, if one was required, which is not at all clear was entirely proper and within the discretion of the trial court; the purpose of the action being to determine what, if any, interest in or lien upon the property was held by either of the defendants. And, assuming that the plaintiff's objections to the order allowing the amendment amounted to an application for further time, there was no abuse of discretion in denying such application. The plaintiff knew, or should have known, when he summoned the decedent into court to assert his...