Hingtgen v. Thackery
| Decision Date | 21 May 1909 |
| Parties | M. A. HINGTGEN, Plaintiff and respondent, v. GEORGE W. THACKERY et al., Defendants and appellants. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Davison County, SD
Reversed
Preston & Hannett
Attorneys for appellants.
Jesse Vain Valkenburg, Hanton & Loucks
Attorneys for respondent.
This cause comes before the court upon an appeal from the judgment of the trial court in favor of the plaintiff, and from an order denying a new trial.
This action seems to be the sequel of Lund v. Thackery, 18 S.D. 113, 99 N.W. 856, and reference is made to said cause for a statement of the facts therein, and the opinion of this court upon such facts.
Upon the trial of the case at bar, which trial was had before the court without a jury, the court made its findings of fact, from which ‘it found the facts as shown in Lund v. Thackery, supra, and found the following in addition thereto: At the time of the commencement of said action of Lund v. Thackery, to wit, on November 24, 1902, the plaintiff, Lund, filed a notice of lis pendens, but did not serve his summons within 60 days, as required by the Code. Lund sold the land to the plaintiff herein a few days after the filing of the said notice of lis pendens. Plaintiff had in his hands, at the time of such purchase, an abstract of the title to such land, showing the deed from G. W. Thackery to his brother, as well as the purported deed from said Thackery to Lund, which abstract showed the Lund deed first in date of execution, but sesond in date of recording. Plaintiff had no actual notice of the suit of Lund v. Thackery until long after his purchase. There is no claim by plaintiff, or any finding, to the effect that he ever made any investigation or inquiry concerning the deed from Thackery to his brother, or as to the apparent defect in his grantor’s title. After the final decision in Lund v. Thackery, Amos Thackery reconveyed the land to G. W. Thackery, and it appears that the conveyance to Amos Thackery was without consideration, and was with notice on the part of Amos Thackery of the said imperfect deed which G. W. Thackery had signed; and the reconveyance to G. W. Thackery was without consideration. The above are all the facts material to the consideration of this cause upon appeal. The learned trial court concluded as the law from the facts found; first, that defendant G. W. Thackery was estopped by his negligent and inexcusable acts from denying plaintiff’s title; second, that plaintiff was a purchaser in good faith, for a valuable and adequate consideration, and without notice or knowledge of any defects in the deed from G. W. Thackery to Lund. Proper exceptions were saved to both of the above conclusions; and, whiler many other questions are raised by this appeal, those raised by the exceptions to above conclusions are the only ones we care to consider on this appeal, as we deem these raise the only really material questions in this cause. Furthermore, we consider the matter most important to be the question of whether, in law, the plaintiff had notice of the defects in his grantor’s title, because if he did have such notice, then it certainly cannot be held that he is in a position to invoke the equitable rule of estoppel; he having done nothing to protect himself against the effect of such notice.
We do not think it any wise necessary to discuss the effect of the recording acts on the rights of either party; although, considering the question of records alone, the defendant Thackery is certainly in the better position. We will treat this cause simply as it stands, regardless of the recording acts. These facts were known to plaintiff when he took the Lund deed and paid the consideration therefor: that his title was derived through the deed of G. W. Thackery to Lund; that after the date of said deed to Lund, Thackery had attempted to convey this land to his brother by a deed which would apparently convey all of...
To continue reading
Request your trial