Murphy v. Dafoe

• Decision Date: 05 April 1904
• Citation: 99 N.W. 86,18 S.D. 42
• Parties: MURPHY v. DAFOE et al.
• Court: South Dakota Supreme Court

99 N.W. 86

18 S.D. 42

MURPHY v. DAFOE et al.

Supreme Court of South Dakota

April 5, 1904

Appeal from Circuit Court, Union County.

Action by Andrew A. Murphy against William Z. Dafoe and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Ira O Curtiss and H. H. Potter, for appellant. H. M. Wallace, for respondents.

CORSON P. J.

This is an action to quiet title to 120 acres of land situated in Union county, in this state. The defendants by their answer deny each and every allegation in the first cause of action except that the defendants claim some estate or interest in said lands adverse to the plaintiff, and deny each and every allegation contained in the second cause of action. The defendants, for a second defense, plead the 20-year statute of limitations. For a third defense they plead the 10-year statute of limitations and the payment of all taxes during that time. For a fourth defense they plead the possession of the premises since 1879, under a tax deed issued to their grantors by the county treasurer of Union county on the 29th day of December, 1879, and that the defendants are the legal owners and holders of the said land and premises under and by virtue of the said tax title. For a fifth defense they allege the execution of the said tax deed above set forth; that the defendant Catherine Jane Barker, now deceased, in June, 1883 became the owner of the said property, and entered into possession in good faith, and has made improvements on the said property of the value of about $1,600. For a sixth defense the defendants allege the execution and delivery of the said tax deed; that the defendant Catherine Jane Barker purchased the said premises at their full value and in good faith, relying on the validity of the said treasurer's deed, and believing that the same was good and valid; that E M. Morris, who was the original patentee of the said premises, abandoned the same more than 25 years ago, and he and his grantees have by reason thereof forfeited and lost any claim thereon and any right of action against the defendants therefor. The court finds the facts substantially as alleged in the several defenses, and concludes, in substance: (1) That the plaintiff has no cause of action; (2) that the deed from said Edgar M. Morris to the plaintiff was inoperative to convey to him any title, said Edgar M. Morris not having seen seised or possessed of the premises described therein or any part thereof within 20 years next preceding the making of said deed; (3) that said deed was inoperative to assign to plaintiff any right to the rents and profits of said premises, said deed being inoperative to convey title, and the attorney in fact who executed said deed not being authorized to assign the rents and profits; (4) that the plaintiff and his said grantor, Edgar M. Morris, having been guilty of great laches, neglect, and delay herein, and in asserting a claim to said premises, and by reason thereof, have forfeited and lost any claim therein or right of action against defendants, and any right plaintiff may have had against said Catherine Jane Barker, deceased; (5) that the treasurer's deed to said C. W. Marsh and W. W. Marsh transferred and conveyed to them a good and indefeasible title in fee simple to said premises; (6) that for more than 20 years prior to the commencement of this action said premises had been held adversely by said Catherine Jane Barker and her grantors; (7) that said Catherine Jane Barker was at the date of the trial herein, and her estate and the defendant J. Griffin Conly, as administrator thereof, now is, the owner of the said premises in question herein; (8) that defendants are entitled to a judgment and decree dismissing plaintiff's cause of action, and adjudging that he has no right, title, or interest in the premises in question herein, and that said Catherine Jane Barker was the owner thereof at the date of the commencement of this action and at the time of the trial hereof, and that her estate and the defendant J. Griffin Conly, as administrator thereof, now is the owner thereof, and that the title thereto be quieted accordingly. From the judgment entered on the decision of the court, and the order denying a new trial, the plaintiff has appealed.

Since the trial of this case the said defendant Catherine Jane Barker has departed this life, and J. Griffin Conly has been substituted as her administrator.

It is contended by the appellant that the court erred in holding that the tax deed was valid; that the court erred in holding that the plaintiff was barred by 20 years' adverse possession; and in holding that the plaintiff was estopped from claiming the property by reason of the laches of the plaintiff's grantor. The court seems to have based its decision upon the finding that the plaintiff's action was barred by the 20-year statute of limitations, and also upon the fact that the plaintiff was estopped from asserting any claim to the said premises by reason of the laches of said plaintiff's grantor, and that he had thereby forfeited and lost any claim he had thereon or right of action therefor. In view, therefore, of the fact that the court has not based its decision upon the 10-year statute of limitations, we do not deem it necessary to discuss or consider that question in this opinion.

It is contended by the appellant that the evidence was insufficient to support the court's finding and conclusion of law that Catherine Jane Barker and her grantor were in exclusive possession of the premises for more than 20 years prior to the commencement of this action. It appears from the evidence that as early as 1880 one Osborne, while upon the land and cutting timber thereon, stated that he was acting as the agent of the Marshes. This evidence was objected to, but admitted, and exception taken. We are of the opinion that the evidence was properly admitted. Osborne, being in possession of the premises, would ordinarily be presumed to be the owner; hence his statements, while in such possession, that he was acting as the agent of the Marshes, was in disparagement of his own title, and was therefore admissible. Upon this subject Mr. Greenleaf, in his work on Evidence (section 109), says: "In regard to the declarations of persons in possession of land, explanatory of the character of their possession, there has been some difference of opinion, but it is now well settled that declarations in disparagement of the title of the declarant are admissible as original evidence. Possession is prima facie evidence of seisin in fee simple, and the declaration of the possessor that he is tenant to another, it is said, makes most strongly against his own interest, and therefore is admissible." Lowman v. Sheets, 124 Ind. 416, 24 N.E. 351, 7 L. R A. 784; Rutledge v. Hudson, 80 Ga. 266, 5 S.E. 93; Youngs v. Cunningham, 57 Mich. 153, 23 N.W. 626; Casey v. Casey, 107 Iowa, 192, 77 N.W. 844, 70 Am. St. Rep. 190; Stockton Bank v. Staples, 98 Cal. 189, 32 P. 936; Cannon v. Stockmon, 36 Cal. 536, 95 Am. Dec. 205; Lick v. Diaz, 44 Cal. 479; Brown v. Kohout, 61 Minn. 113, 63 N.W. 248; Elwood v. Saterlie, 68 Minn. 173, 71 N.W. 13. It is true there was evidence tending to prove that Osborne, in cutting the wood and looking after the premises, was acting as the...