Phillis v. Gross

• Court: South Dakota Supreme Court
• Writing for the Court: GATES, P. J.
• Citation: Phillis v. Gross, 39 S.D. 434, 164 N.W. 971 (S.D. 1917)
• Decision Date: 12 November 1917
• Docket Number: 4118
• Parties: ELMINA E. PHILLIS, Plaintiff and respondent, v. ROBERT A. GROSS et al., Defendant and Appellant.

39 S.D. 434

164 N.W. 971

ELMINA E. PHILLIS, Plaintiff and respondent,

v.

ROBERT A. GROSS et al., Defendant and Appellant. South Dakota Supreme Court Appeal from Circuit Court, Potter County, SD Hon. Joseph Bottum, Judge #4118--Opinion on previous appeal modified Howard G. Fuller Attorneys for Appellant. Robert B. Fisk Attorneys for Respondent. Opinion filed November 12, 1917. Rehearing denied December 31, 1917 (See 32 SD 438, 143 N.W. 363)

GATES, P. J.

This case was before us upon a former appeal; the opinion then rendered appearing in 32 SD 438, 143 N.W. 363, reference to which is made for an understanding of the present appeal.

In the former opinion an incorrect statement made in the first draft thereof was inadvertently allowed to stand, to-wit: In line 7, page 454, 32 SD (in line 48, col. 2, 143 N.W. 378), it was stated: "Edgerton became the equitable owner of the property." The statement should have been: "Edgerton acquired an equitable interest in the property." That such was the intention of this court is clear from the following language in next to the last paragraph of the opinion, viz.:

"And it nowhere appearing that he ever paid the purchase price for the land or became possessed of the legal or equitable title thereto, plaintiff failed to establish her ownership in fee, and therefore failed to establish her cause of action."

When a purchaser performs all acts necessary to entitle him to a deed, then, and not until then, has he an equitable title. Reid v. Gorman, 158 N.W. 780; Chappell v. McKnight, 108 Ill. 570; Warvelle on Vendors, § 176.

Upon a new trial the court found that defendant Gross and his antecedent grantors purchased the property with actual notice, or under circumstances sufficient to impart actual notice, of Edgerton's continuous possession of the land from 1898 to the time of his death in 1908. Although these findings are vigorously assailed by appellant, we are of the view that they are sustained by the preponderance of the evidence. The findings of fact, besides containing findings of ultimate facts, contain findings of evidence, and were grossly objectionable, covering as they do 40 pages of the printed record.

Notwithstanding the concluding portion of the former opinion, and without any evidence that Edgerton or his successor in interest, the plaintiff, had ever paid the sum due on the contract or bond for deed, or the taxes on the land, the court held that the plaintiff was the owner of the land, and decreed defendants to have no interest therein, except that defendant Gross had a lien for the taxes paid for 1906 and subsequent years. The court also held (undoubtedly in view of certain dicta in the former opinion) that, inasmuch as the notes described in the contract or bond for deed were not accounted for in this action, the defendant Gross was not the assignee of such contract, but merely held the title for the owner of the notes. It is a singular thing that upon both trials there has been no evidence offered as to these notes, if any notes were in fact ever executed and delivered to Chamblin, although Chamblin's deposition was taken for use upon the last trial. We are inclined to the view that the former opinion should have been silent upon the precise relationship between the holder of the notes, if there were notes, and the holder of the title. One thing is certain, and that is that, if no notes were executed, the defendant Gross now stands in Chamblin's shoes with reference to the vendor's rights under the bond for deed. Whether, if the notes were in the hands of third persons, the defendant Gross would stand in the same position, should not have been decided in...