Joy v. Midland State Bank
| Decision Date | 04 October 1910 |
| Citation | 128 N.W. 147,26 S.D. 244 |
| Parties | JOY v. MIDLAND STATE BANK et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Pennington County.
Action by Francis F. Joy against the Midland State Bank and others in which Julius A. Perkins was made a defendant by order of court on his petition. From a judgment for plaintiff defendant Julius A. Perkins appeals. Reversed.
Buell & Gardner and Hall & Stout, for appellant.
Charles W. Brown, for respondent.
This action was brought by the plaintiff to quiet title in certain lands in Pennington county; said action being brought under the provisions of chapter 81 of the 1905 Session Laws of this state. The defendant Perkins was not named in the original summons or complaint, and was not a party to said action except as he was made so under the term "persons unknown"; but he became party defendant upon order of court, made at his request. The cause was tried to the court without a jury, and findings of fact were made upon which conclusions of law and decree were entered in favor of the plaintiff. The motion for new trial having been denied, the defendant Perkins appeals to this court from the judgment of the trial court and the order denying a new trial. The Midland Bank made no appearance in the trial court, and a default decree was entered against it.
The findings of the court were quite voluminous, and we deem it unnecessary to recite the same in full herein. Under the evidence the following facts appear uncontroverted: In September, 1896, the Midland State Bank was a corporation existing and doing business under and by virtue of the laws of the state of Nebraska and was the holder of the fee title to the real estate in question. Upon that day proceedings were started in district court of Douglas county, Neb., praying for the appointment of a receiver of such corporation, which proceedings were brought under and by virtue of the Constitution and a statute of that state; the statute in question providing for the appointment by the district courts, upon application of the Attorney General, of a receiver to take charge of and wind up the business of a banking corporation whenever it should appear, upon proper examination, that such bank had less property than that required by the laws of said state, or was conducting its business in an unsafe and unauthorized manner. In such proceedings one Joseph W. Thomas was by such court appointed the receiver of such banking corporation, and by the order appointing him, dated September 16, 1896, he was authorized, among other things, to sell the real estate of said bank upon the further order of said court. Such receiver duly qualified by giving bond which was approved by the judge of the court. On September 10, 1897, the said receiver undertook and purported to sell, to the defendant Julius A. Perkins, certain assets of said corporation, among which was the land involved in this suit. A report of such sale was made to the court, and on October 6, 1897, such sale was confirmed by said court over the objections of said Midland State Bank; and on October 19, 1897, the said receiver executed a deed, purporting to convey the said lands to the appellant herein, which deed was never filed for record in the office of the register of deeds of Pennington county until July 20, 1907. It is under and by virtue of this deed that appellant claims title to the land and seeks, through counterclaim, a decree quieting such title. Plaintiff makes no claim of title under and through the original source of title, but bases his claim solely upon the following: A treasurer's tax deed, purporting to convey all of this land, was on October 15, 1897, issued by the then treasurer of Pennington county to one Paul S. Woods as grantee, which deed was, upon that date, placed of record, and the said Paul S. Woods immediately entered into possession of said land under said deed. He continued in such possession until he conveyed his interest in said land to the plaintiff, who ever since has been in possession of the same. On November 6, 1901, and while said Woods was holding possession of said lands under the above-mentioned tax deed, he purchased all of said lands upon a tax judgment sale under what is known as the "Scavenger tax law." Certificates of sale were issued to him of that date, which certificates were assigned to this plaintiff on August 2, 1902, upon which date plaintiff entered into possession of said premises. On the same date Woods gave plaintiff a quitclaim deed of said premises, which deed was recorded August 4, 1902. Plaintiff published notices of expirations of certificates of purchase; the last publication of such notices being September 10, 1902. Such notices gave as date for termination of redemption period December 17, 1902. The proof of these publications was never filed in the office of the clerk of courts of Pennington county until December 13, 1907. Such proof was in the form of affidavits sworn to on December 12, 1907. From the date of the tax deed running to Woods all taxes against the lands were paid by Woods or plaintiff; some of such payments being made by purchases at tax sale or redemption from purchase at sale. This action was commenced July 21, 1906, upon which date plaintiff filed notice of lis pendens in the usual form.
Upon this appeal the appellant, not only maintains the validity of the title claimed by him, but attacks the title claimed by respondent. Respondent in his brief cites no authorities and makes no argument in support of his title, simply taking the position that appellant has no title to such premises, and that, as against a party holding no title, respondent's tax deed, being at least color of title, is, together with his possession of said premises, sufficient to entitle him to the decree of the trial court under the decisions of this court in the cases of Weeks v. Cranmer et al., 18 S.D. 441, 101 N.W. 32, and King v. Lane, 21 S.D. 101, 110 N.W. 37. It must be conceded that respondent is right in his conclusion providing his premise-that appellant has shown no title-is correct, as such tax deed constitutes at least color of title. It is therefore necessary for us first to determine whether or not appellant received any title to said premises through such purported receiver's sale.
The petition for the appointment of a receiver for the Midland State Bank had attached thereto, and forming a part thereof, a copy of a resolution purporting to authorize the president of such bank to appear in court, waive all notices and processes, and consent to the appointment of a receiver for such bank, upon the ground that, for certain reasons given, "it is unsafe and inexpedient and against the interest of the depositors for such corporation to continue transacting a banking business." The petition itself recited "that it is unsafe and inexpedient for said bank to continue the banking business," and applied for full power, among other things, to sell the real and personal property of the bank, to collect all its assets, and pay all claims against it. It clearly appears that it was filed under the statute above referred to.
It is the contention of the appellant that the appointment of such receiver and his sale of the property in suit passed to the purchaser on such sale the title of the bank to such property, it being the claim of appellant that the proceedings against the bank were proceedings in personam and not in rem; that, under such proceedings, the court acquired jurisdiction over the person of the bank with the power to require a conveyance of its title to the purchaser on sale; and that the receiver had full authority to convey such title. Appellant has cited, in support of such contention, Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65, 23 L. R. A. (N. S.) 924; Fall v. Fall, 75 Neb. 120, 106 N.W. 412, 113 N.W. 175, 121 Am. St. Rep. 767; Gilliland v. Inabnit, 92 Iowa, 46, 60 N.W. 211; Wimer v. Wimer, 82 Va. 890, 5 S.E. 536, 3 Am. St. Rep. 126; Lindley v. O'Reilly, 50 N. J. Law, 636, 15 A. 379, 1 L. R. A. 79, 7 Am. St. Rep. 802. We do not think, however, that, upon a careful analysis of these cases, there can be found support for appellant's claim that solely through proceedings in the Nebraska courts title to this property passed, unless there was in the evidence something to warrant a finding that the bank had conferred upon the receiver power to convey legal title to this land, and there was no finding to such effect. It will be found that the great weight of authority is to the effect that, while the courts have a right and power, when they have acquired jurisdiction over the person of a party in a proper case, to compel him to execute a conveyance of property in another state, which conveyance the courts of such other state will recognize as valid and sufficient to pass the legal title, it is only when, pursuant to the order of such a court, a conveyance is executed by one empowered to convey the legal title, that the courts of the situs of the land will recognize title to have passed. Furthermore, the power to convey must not be a power given by such foreign court, but a power conferred either by statute or by act of the holder of the legal title; and it is the deed of conveyance from the duly authorized person that is recognized as having extraterritorial effect, and not the decree ordering such conveyance.
Under such line of decisions, it is held that one may sue, in any state where defendant may be served, to require a conveyance of real estate to be executed pursuant to a contract, though the real estate is situate in another state, and plaintiff may get a decree for such conveyance, which decree may be enforced by process of the court requiring defendant to make deed, and that such deed...
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