Harker v. Cowie
| Decision Date | 22 July 1919 |
| Docket Number | 4448. |
| Citation | 173 N.W. 722,42 S.D. 159 |
| Parties | HARKER et al. v. COWIE et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Charles Mix County; R. B. Tripp, Judge.
Action by Emma W. Harker and M. W. Harker, as executors of the last will of Joseph Harker, deceased, against A. E. Cowie and John W. Potter. Judgment for plaintiffs, and the last-named defendant appeals. Affirmed.
French Orvis & French, of Yankton, and Walker & Gurley, of Armour for appellant.
J. L Hannett, of Winner, for respondents.
This action was instituted to vacate and cancel the judgment in the case of Cowie v. Harker, and also to quiet title in plaintiff to certain real estate. Findings and judgment were in favor of plaintiff, and defendants appeal. This cause has been before this court on a former occasion. 38 S.D. 385, 161 N.W. 620.
From the record it appears that on the 16th day of April, 1888, one Fees was then the owner of the real estate in question, and at that time executed and delivered to the Lombard Investment Company a mortgage upon said land to secure an indebtedness of $600; that thereafter on the 11th day of May, 1888, the said mortgagee purported to assign said mortgage to the Security Trust & Safe Deposit Company; that thereafter, default having been made in the payment of said indebtedness, the said mortgage was foreclosed by advertisement, the foreclosure sale having been made on the 25th day of June, 1898, and thereafter, on the 22d day of July, 1899, the time for redemption having expired without redemption having been made, a sheriff's deed to said land was made to the said Security Trust & Safe Deposit Company, the purchaser at said foreclosure sale; that said mortgage and said purported assignment thereof, said sheriff's deed, and all foreclosure papers, and instruments, were duly recorded on the 14th day of September, 1899. On the 14th day of February, 1900, the said Security Trust & Safe Deposit Company made, executed, and delivered to Joseph Harker a warranty deed for said lands, which deed was immediately filed for record, and said Harker immediately took possession of said land, in February, 1900, and continuously remained in actual possession thereof until the time of his death in 1912, and his heirs, the plaintiffs, have been at all times up until the trial of this action in actual possession thereof. On the 28th day of June, 1892, the said Fees, the said mortgagor and original owner of said land, conveyed the same to one Pratt, and thereafter, in 1894, the said Pratt conveyed the said land to one Albert Rathbone, who thereafter, on the 11th day of November, 1895, conveyed the said land to Jennie R. Comstock. Thereafter on the 22d day of June, 1909, the said Jennie R. Comstock, as Jennie B. Rathbone, conveyed the said lands by quitclaim deed, for the express consideration of one dollar, to the defendant Cowie; and Cowie thereafter conveyed said land to Zolnowsky, who conveyed to the defendant Potter.
It also appears from the record that the assignment of said mortgage from said Lombard Investment Company to the said Security Trust & Safe Deposit Company was irregular and defective so as to constitute said assignment an instrument not entitled to be recorded under the laws of this state, and which fact rendered the said mortgage foreclosure sale irregular and with no legal force or effect. It also appears that the said Jennie R. Comstock, née Rathbone, the owner of the legal title to said lands at the time of the said mortgage foreclosure sale, acquiesced in and made no objection to said sale, and surrendered and permitted the possession of said mortgaged lands to be taken by said purchaser at said foreclosure sale, and also permitted without objection the said Harker to take actual possession of said lands in February, 1900; and also permitted said Harker thereafter for the period of about nine years to remain continually in actual possession of said lands and make valuable and permanent improvements thereon. The said owner of the legal title also abandoned the payment of taxes on said land in the year 1901, and permitted without question the said Harker to pay taxes thereon for more than nine years thereafter. On the 20th day of February, 1901, the said Joseph Harker paid the taxes on said land for the year 1900, and thereafter each and every year paid said taxes up to and including the taxes for the year 1910; the taxes for 1910 being paid by him on the 28th day of February, 1911, and being and constituting the payment of taxes for eleven successive years. After acquiring legal title, the said Cowie, on the 27th day of September, 1909, commenced an action in the circuit court against said Joseph Harker under the provisions of chapter 81 Laws 1905, to determine all adverse claims to said land, and to quiet title thereto in said Cowie, and on the 6th day of November, 1909, judgment was rendered by default in said action in favor of said Cowie, quieting title in him, and which judgment was filed and entered in the office of the clerk of the circuit court on the 7th day of December, 1909.
Thereafter, in 1911, this action was instituted by Joseph Harker, against the said Cowie and Potter: First, to cancel and set aside the said default judgment in Cowie v. Harker on the ground that no process or summons in said action had ever been served upon him, and that by reason thereof the court acquired no jurisdiction to render said default judgment; and, second, to determine adverse claims to title, and to quiet title in him, the said Harker. Also, on the 12th day of October, 1911, the said Joseph Harker, as defendant in the said action of Cowie v. Harker, served notice of motion to open and set aside the said default judgment in Cowie v. Harker, and to permit said Harker to appear and answer in said action, and which motion was granted, and an order was duly made on the 29th day of January, 1912, setting aside the said default judgment theretofore entered in said case, and permitting the said Harker to interpose an answer to the cause of action therein alleged, from which order, setting aside said default judgment, appeal was taken by said Cowie to this court, and the said order affirmed. 32 S.D. 516, 143 N.W. 895. Thereafter, this action of Harker v. Cowie and Potter was tried in the circuit court, and findings and judgment rendered in favor of the defendant Potter, based on the ground that Potter was an innocent good-faith purchaser of said land without notice of the alleged interest claimed in said lands by Harker. From which judgment the said Harker appealed to this court, with the result that the judgment of the circuit court was reversed, and the cause remanded for new trial, upon the ground that said Potter was not an innocent purchaser in good faith without notice; the record in that case showing that he had notice of the actual possession of Harker under circumstances putting him upon inquiry as to the rights of Harker. 38 S.D. 385, 161 N.W. 620. The cause was again retried and is now before this court on the second appeal.
On this appeal four principal questions are submitted for determination: (1) That the trial court on the 29th day of January, 1912, had no jurisdiction under section 9, c. 81, Laws 1905, to vacate and set aside said default judgment in the case of Cowie v. Harker on the ground that more than two years had then elapsed since the entry of said default judgment; (2) that defendant Potter and Zolnowsky, his predecessor in interest, were not bound by the procedure in the Cowie v. Harker Case; (3) that the court erred in refusing to find that Zolnowsky was an innocent purchaser in good faith without notice; and (4) that the finding of the trial court that Harker, in good faith under color of title, had paid for more than ten years immediately preceding the commencement of this action all taxes assessed against the said land, was not sustained by the evidence.
The first contention of appellant is that the default judgment in Cowie v. Harker having been entered on the 7th day of December, 1909, the trial court was wholly without power of jurisdiction to vacate the same on the 29th day of January 1912, more than two years after such entry; while, on the other hand, the respondents contend that the defendants Cowie and Potter are both estopped in this case by the decision of this court in Cowie v. Harker, 32 S.D. 516, 143 N.W. 895-that such decision became the conclusive law of this case as against Cowie, and all other parties in privity with him. We are of the opinion that respondents are right in this contention. Under the provisions of section 151, Code Civ....
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