Morse v. Pickler

• Decision Date: 14 February 1912
• Citation: 134 N.W. 809,28 S.D. 612
• Parties: ALBERT W. MORSE, Plaintiff and respondent, v. ALICE M. A. PICKLER and L. A. Frad, Defendants and appellants.
• Court: South Dakota Supreme Court

28 S.D. 612, 134 N.W. 809 (1912)

ALBERT W. MORSE, Plaintiff and respondent v ALICE M. A. PICKLER and L. A. Frad

Defendants and appellants

South Dakota Supreme Court

Appeal from Circuit Court, Faulk County, SD

Hon. J. H. Bottum, Judge

Affirmed

Frank Turner, F. E. Snider

Attorneys for appellants.

W. F. Mason, D. H. Latham

Attorneys for respondent.

Opinion filed February 14, 1912

McCOY, J.

On April 2, 1886, one Ingerid O. Markoe made final proof and payment under government homestead entry for a quarter section of land in Faulk county. Thereafter, on May 7, 1891, one Edith Sharpless, through mesne conveyances from said Markoe, became the owner of said land, and on the 18th day of November, 1902, the said Edith Sharpless died intestate at West Chester, in the state of Pennsylvania, leaving three sisters and two brothers as her only surviving heirs. No administration of her estate was ever had. On January 26, 1909, the said brothers and sisters of said Edith Sharpless joined in a quitclaim of said land to the plaintiff, who brings this action to determine adverse claims under the statute. The defendants answered by general denial, and for further answer allege that Alice M. A. Pickler and L. A. Frad are owners in fee of said land through tax deeds issued by the county treasurer of Faulk county to certain grantors of defendants, and through certain other tax deeds issued directly to them. The defendants further answer by way of counterclaim that one Carpenter, a former owner of said land in defendant's chain of title, brought an action to determine adverse claims, in the circuit court of Faulk county, against the said Edith Sharpless, in which action the defendant, Edith Sharpless, made default, and judgment was entered therein against her in February, 1902, adjudging and decreeing that said plaintiff, Carpenter, was the owner of said land, and defendants herein pleaded said judgment as a bar against plaintiff's alleged title. Plaintiff replied, alleging that said Carpenter judgment was void for want of jurisdiction to render the same. On the trial, findings and judgment were in favor of plaintiff, and defendants appeal.

Appellant's contentions are: (1) That there is no evidence that the United States government ever parted with its title to the premises of Ingerid O. Markoe, grantor in plaintiff's chain of title. (2) That the court erred in receiving oral evidence of the names and relationship of the persons who, it is claimed, are the only heirs of Edith Sharpless, deceased; that she was unmarried and had no offspring, and that her parents were deceased. (3) That the trial court erred in holding that the circuit court of Faulk county did not acquire jurisdiction in the action in the circuit court of Faulk county, S. D., wherein H. M. Carpenter was plaintiff and Edith Sharpless was defendant.

Appellants' first contention is that the receiver's receipt for final proof and payment to the United States Land Office is not evidence of title; that the legal title to public lands remains in the government until the patent issues, and that the receiver's final receipt vests no title in the holder thereof. It is the contention of appellants that final proof and payment and such receipt do not vest in Markoe a sufficient title to maintain this action. It is conceded that whatever title accrued to Markoe by final proof and payment has been transferred by regular conveyances to the plaintiff, Morse. It has been many times held that after final proof and payment for public lands, in the absence of fraud or mistake, the government merely holds the legal title as trustee; and that the entryman becomes the equitable owner of the land. Risdon v. Davenport, 4 S.D. 555, 57 N.W. 482; Carroll v. Safford, 3 How. 463, 11 L.Ed. 671; Withersponn v. Duncan, 4 Wall. 218, 18 L.Ed. 339; Cornelius v. Kessel; 128 U.S. 456, 9 Sup.Ct. 122; Weeks v. White, 41 Kan. 569, 21 Pac. 600; Kinney v. Degman, 12 Neb. 237, 11 N.W. 318; Bullock v. Wilson, 2, Port. (Ala.) 436; Gill v. Taylor, 3 Port. (Ala.) 182; McDonald v. Edmunds, 44 Cal. 328; Witcher v. Conklin, 84 Cal. 499, 24 Pac. 302.

An action to quiet title may be maintained by any person having an estate or interest in land, either legal or equitable. Dalrymple v. Sec. Loan & Trust Co., 9 N.D. 306, 83 N.W. 245 Tuffree v. Polhemus, 108 Cal. 670, 41 Pac. 806. Of course, it must be conceded that in an action to determine adverse claims the plaintiff must recover upon the strength of his own title, and that a failure to show ownership will be fatal to plaintiff's action. Harmon v. Goggins, 19 S.D. 34, 101 N.W. 1088; Weeks v. Cranmer, 18 S.D. 441, 101 N.W. 32; Conrad v. Adner, 13 N.D. 199, 100 N.W. 722. Appellants' contention appears to be, not that there is no evidence to sustain the finding of the trial court, but that the evidence in the record is incompetent to establish title. The views above expressed are necessarily adverse to this contention.

Appellants' contention, that, in an action to determine adverse claims to real property, where title is derived through heirship, no evidence is competent to establish heirship, except the record and findings of the probate court, is not sustained by any citation of authority, and is without merit.

At the trial, in support of the allegations of the answer, defendants offered in evidence the record of an action in which H. M. Carpenter, a former owner in defendant's chain of title, was plaintiff, and Edith Sharpless, through whom the plaintiff claims title, was defendant. In that action, Edith Sharpless made default, and a judgment was entered establishing Carpenter's title as against her, and barring her adverse claims. Service on Edith Sharpless was had by publication of the summons, pursuant to an order of the court, and the order and affidavits for publication were attached to the record offered in evidence by defendants. It is the contention of respondent that, because of certain alleged defects in the affidavits for publication and in the order, and because neither the order nor affidavits were filed until after publication, the judgment attempting to adjudicate the rights of H. M. Carpenter as against Edith Sharpless was wholly void, and may be attacked in this action. Appellants contend that any attempt to review the alleged defects in the affidavits for publication constitutes a collateral attack upon the judgment, and that upon a collateral attack neither the affidavits, order, nor filing marks constitute any part of the judgment roll, and should not have been considered by the trial court. We are of the opinion that the contention of appellants is not tenable.

From the record it appears that plaintiff, as the successor of Edith Sharpless, brought this action against the defendants, as successors in interest of H. M. Carpenter, to quiet title to certain lands situated in Faulk county. Among the various answers set up by defendants is a counterclaim, whereby defendants claim title in themselves under a certain domestic judgment rendered by the circuit court of Faulk county in favor of said Carpenter, wherein the said Carpenter was adjudged and decreed to be the absolute owner of said premises, and the said Sharpless was decreed to have no interest or title therein, and said title to the land in question was quieted in Carpenter. The summons was attempted to be served by publication in 1901. The judgment recited that due service of the summons had been made upon Edith Sharpless. The affidavit for publication is defective, and not sufficient to bring into exercise the judicial function, or to confer jurisdiction upon the court to order publication of the summons, in that said affidavit nowhere, in any manner whatsoever, shows any diligence to ascertain the place of residence of said Edith Sharpless outside the state of South Dakota. The affidavit shows that some inquiry was made to ascertain her place of residence within the state of South Dakota; but no inquiry whatever is shown to have been made to ascertain her residence outside the state. The record shows that at one time she resided at Seneca, in said Faulk county; but for many years prior to her death she resided in the vicinity of West Chester, in the state of Pennsylvania. Under all the many decisions of this court rendered upon this subject, the said affidavit for publication was insufficient to call into exercise the judicial mind, or to confer jurisdiction on the court to order service of the summons by publication. Grigsby v. Wopschall, 25 S.D. 564, 127 N.W. 605; Coughran v. Markley, 15 S.D. 37, 87 N.W. 2; Soderberg v. Soderberg, 1 Dak. 503; Beach v. Beach, 6 Dak. 371, 43 N.W. 701; Bothell v. Hoellwarth, 10 S.D. 491, 74 N.W. 231; Plummer v. Bair, 12 S.D. 23, 80 N.W. 139.

The contention is that plaintiff is attacking the said judgment collaterally, and that the...