Meadows v. Osterkamp

• Decision Date: 31 May 1905
• Citation: 103 N.W. 643,19 S.D. 378
• Parties: MEADOWS et al. v. OSTERKAMP et al.
• Court: South Dakota Supreme Court

19 S.D. 378

103 N.W. 643

MEADOWS et al.

v.OSTERKAMP et al.

Supreme Court of South Dakota.

May 31, 1905.

Appeal from Circuit Court, Sully County.

Action by George Meadows and another against Lorenzo Osterkamp and others. From a judgment for plaintiffs, defendants appeal. Reversed.Albert Gunderson, for appellants. John Sutherland, for respondents.

FULLER, J.

This action, to correct a clouded title by setting aside a tax deed alleged to be void for certain irregularities, has been twice tried in circuit court, and is now here for the second time on an appeal from a judgment in favor of plaintiffs and an order denying a motion for a new trial. Reference to the case as reported in 13 S. D. 571, 83 N. W. 624, will show that all testimony pertaining to permanent improvements made by appellants while occupying the land was erroneously rejected on the theory that their tax deed was void, as a matter of law, and therefore insufficient to import either good faith or color of title, as contemplated by the statute authorizing a counterclaim for the value of such improvements, and the judgment appealed from was reversed, and a new trial upon all the issues ordered.

By some inadvertence the circuit court appears to have overlooked the fact that, without determining the validity of the tax deed on appeal, a trial de novo was awarded, and immediately after the jury had been sworn to try the cause the following ruling was voluntarily made and entered, to which an exception was duly taken by counsel for appellants: “The court has tried this cause on the line of title, and found the tax deed bad, and the question now is for the jury as to the value of the improvements, unless there is something new in the evidence as to the title.” Conformably to this view of the court, the defense was confined chiefly to the introduction of testimony pertaining to the character and extent of certain valuable improvements upon the premises made by appellants in good faith prior to the commencement of the action, and which the jury found to be worth $630. While no question as to the validity of the tax deed was determined by this court, and the granting of the new trial reopened the entire case, and placed the parties and issue involved just where they were before a trial had taken place, the court appears to have reached the conclusion that the deed in question, though fair upon its face, is void for reasons disclosed by evidence adduced at the former trial, and by...