Kountz v. Kountz

• Decision Date: 02 October 1901
• Citation: 87 N.W. 523,15 S.D. 66
• Parties: WILLIAM J. KOUNTZ, Executor of the Last Will of Peninah W. Kountz, deceased, Plaintiff and appellant, v. JOHN T. KOUNTZ, Defendant and respondent.
• Court: South Dakota Supreme Court

15 S.D. 66, 87 N.W. 523 (1901)

WILLIAM J. KOUNTZ,

Executor of the Last Will of Peninah W. Kountz, deceased,

Plaintiff and appellant,

v.JOHN T. KOUNTZ,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Bon Homme County, SD

Hon. E. G. Smith, Judge

Reversed

C. J. B. Harris

Attorneys for appellant.

W. T. Williams

Attorneys for respondents.

Opinion filed October 2, 1901

FULLER, P. J.

This appeal is from a judgment quieting m the defendant John T. Kountz the title to certain real estate, and from an order thereafter entered overruling a motion for a new trial.

Upon the authority of Hawkins v. Hubbard, 2 SD 631, 51 N.W. 774 (1892), and all subsequent cases involving the point, we decline to entertain respondents’ motion to dismiss, based solely on the ground that an appeal from a judgment and from an order denying an application for a new trial, made after the entry of judgment, constitutes a double appeal.

The evidence not being presented, the question whether the facts sustain the judgment must be determined from the findings of the court, and, in considering the question, it will be assumed, but not decided, that respondents are sustainable in the contention that the findings of fact stated with and as a part of the conclusions of law must be accepted and treated as valid findings of fact. According to this view and the stipulation of counsel, it was found that on the 12th day of September, A. D. 1885, Peninah W. Kountz was the owner in fee simple of the premises described in the amended complaint; (2) that the said Peninah W. Kountz, being such owner in fee simple thereof, the defendant John T. Kountz, afterwards on the said 12th day of September, 1885, entered into and took possession of said premises, and has withheld from the said Peninah W. Kountz and the plaintiff the possession thereof from the said last- mentioned date to the present time; (3) that the defendant John T. Kountz took and held such possession under color of title adversely to the claim of the said Peninah W. Kountz and the plaintiff, in good faith, to-wit, under an alleged tax deed for the taxes for the year 1879, referred to in paragraphs 2 and 5 of the amended reply, which deed was recorded in Book “F” of Deeds, of page 189, in the office of the register of deeds of said county, February 9, 1883; (4) that the value of the permanent improvements made by said defendant John T. Kountz upon said land while so in possession of the same, is $160; (5) that the value of the said land, aside from the improvements thereon is $1,600; (6) that the damages sustained by the said Peninah W. Kountz and the plaintiff, for the withholding of said land from them by the said defendant John T. Kountz, from the 9th day of March, A. D. 1892 (six years prior to the commencement of this action) to the present time, is $500.” Certain paragraphs of respondents’ amended reply relate to the alleged tax deed under which the defendant John T. Kountz entered into and took possession of the premises under color of title adversely to Peninah W. Kountz, who was at the time owner in fee simple and such allegations, referred to in finding of fact No. 3, are as follows:

“(2) And this plaintiff further states that the said defendant Kountz never entered into the possession of the land described in the complaint, or any part thereof, in good faith, or held or attempted to hold the same or any part thereof under any title whatever,...