Mallery v. Griffin

• Decision Date: 24 May 1920
• Docket Number: 4670
• Citation: 43 S.D. 71,177 N.W. 818
• Parties: J. E. MALLERY, substituted for Charles H. Anderson, and E. F. Swartz, Plaintiff and respondent, v. M. E. GRIFFIN, Defendant and appellant.
• Court: South Dakota Supreme Court

43 S.D. 71

177 N.W. 818

J. E. MALLERY, substituted for Charles H. Anderson, and E. F. Swartz, Plaintiff and respondent,

v.

M. E. GRIFFIN, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Hughes County, SD Hon. John F. Hughes, Judge #4670--Affirmed W. E. Miller, Johnson & Johnson, Gardner & Churchill Attorneys for Appellant. Sutherland & Payne Attorneys for Respondent. Opinion filed May 24, 1920

SMITH, J.

Action to quiet title. Findings and judgment for plaintiff. Defendant appeals from the judgment and an order overruling motion for new trial. There are 26 assignments of error. The first 12 which relate to rulings on evidence we do not deem of sufficient importance to warrant discussion, as none of them could have resulted in prejudice to appellant. Appellant also assigns as error insufficiency of the evidence to sustain certain findings. None of them can be considered. They do not point out particulars in which the evidence is claimed to be insufficient.

Plaintiff's title rests upon a trust deed from one Brink, now deceased, to C. H. Anderson and E. F. Swartz, as trustees with full power of alienation, from whom plaintiff, Mallery, received title in fee. Appellant in his brief contends that the trust deed is void because in violation of the statutes of this state against restraints upon alienation and against perpetuities, and urges the well-settled rule that plaintiff must recover, if at all, upon the strength of his own title. It is sufficient to observe that this question does not appear to have been suggested at the trial or considered by the trial court, and cannot be raised for the first time upon this appeal. Furthermore, it is not presented by any proper specification or assignment of error, and for these reasons we shall not consider it.

Appellant pleaded title in himself under a tax deed, and by counterclaim sought to have his title quieted against plaintiff. The trial court found plaintiff, Mallery, to be the owner in fee simple of the land, subject to the rights, if any, of defendant by reason of the tax deed; the trial court further found that the treasurer of Hughes county executed and delivered to defendant a tax deed on November 3, 1917, which was filed and recorded November 6, 1917; that said deed was based upon a tax sale of December 8, 1913, for delinquent taxes of 1912; that on September 3, 1912, at a meeting of the county commissioners, the county auditor presented to the commissioners an estimate of expenses of Hughes county for the ensuing year upon which to base the levy of taxes, which estimate, as shown by the record before us, was adopted and approved by the board on that day, and published as required by Section 2137, Rev. Pol. Code 1903, as amended by chapter 43, Laws of 1905, then in force provides:

"Such taxes shall be based upon an itemized statement of the county expenses of the ensuing year, which statement shall be included in the published proceedings of said board; and no greater levy of county tax shall be made upon the taxable property of any county than will be equal to the amount of such expenses, with an excess of five per cent of the same."

On September 3, 1912, the board of county commissioners met and proceeded to make a levy of taxes for the ensuing year. They first adopted an itemized estimate of the county expenses of the ensuing year, which estimate was thereafter included in the published proceedings of the board, as required by the statute. The aggregate of items in the estimate for the county general fund was $21,450. The estimate recites:

"As there is an income into this fund of $7,003, it leaves about $14,550 to be provided by levy."

For salaries of officers the amount estimated was $11,918.32, with an income into this fund of $2,522.95, leaving $9,395.37 to be provided for by levy." The estimate of the amount required to be levied for the insane fund is $1,920. The estimate of the amount to be levied for the bridge fund is $9,000. The estimate for the road fund recites that there are now road fund warrants...