Risdon v. Davenport

• Citation: 57 N.W. 482,4 S.D. 555
• Parties: RISDON, Plaintiff and appellant, v. DAVENPORT, Defendant and respondent.
• Decision Date: 17 January 1894
• Court: Supreme Court of South Dakota

4 S.D. 555, 57 N.W. 482 (1894)

RISDON,

Plaintiff and appellant,

v.DAVENPORT,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Beadle County, S.D.

Hon. A. W. Campbell, Judge

Affirmed

F. Vollrath

Attorneys for appellant.

William A. Lynch

Attorneys for respondent.

Opinion filed Jan. 17, 1894

KELLAM, J.

This is an appeal from an order of the circuit court overruling a demurrer to the answer. The appellant, Risdon, brought the action to remove, as a cloud upon his title, a certain mortgage appearing to have been executed by one Morris Conway. Without attempting to fully set out the facts alleged in the complaint, the following are sufficient for an understanding of the plaintiff’s alleged cause of action. It is averred that, while the land in question was yet a part of the public domain, it was entered and paid for, under the pre-emption laws of the United States, by some person to the plaintiff unknown, in the name of Morris Conway, who received from the receiver of the proper land office a duplicate receipt therefor; that the said Conway had never made any settlement upon or cultivated any part of said land, and that the testimony upon which said entry was made was false and fraudulent; that after the issuance of said receipt, the mortgage referred to was executed upon the land described in the receiver’s receipt in the name of said Conway as mortgagor, and said respondent as mortgagee, and duly recorded; that, about 13 months after the date of said receipt and the date of said mortgage, appellant filed a contest against said Conway, and his said entry, upon the grounds already stated, and asking that the said entry be cancelled; that thereafter such “further proceedings were had in said contest that on the 20th day of February, 1882, the register and receiver of the United States land office at Mitchell, Dak. Ter., duly gave, made and entered a decision therein, canceling said entry of Conway, and declaring the same forfeited,” etc.; that this decision was affirmed by the land commissioner, who also ordered that the appellant should have 30 days priority within which to file upon said land; that within said 30 days, and while said order was in force, said appellant did settle upon and improve said land as a homestead, made proof thereof, commuted said homestead, and received a final receipt therefor from the said land office; and that he afterwards received a patent therefor from the United States. It is then alleged that respondent is proceeding to foreclose said mortgage. The court overruled a demurrer to this complaint, and the respondent, as defendant, answered. The answer denies many of the allegations of the complaint, and alleges affirmatively, though upon information and belief, that the service of the summons or notice of contest in the proceedceedings referred to in the complaint was made “by publication only, and in no other way or manner;” that the said Conway never appeared therein, in person or by attorney; and that no affidavit was ever made or filed by the said contestant to show that personal service of said notice could not be made. It is further alleged that one of the rules of practice in contest cases prescribed by the secretary of the interior, and then in force, is as follows:

“Rule 12. Notice may be given by publication alone when it is shown by affidavit of the contestant, and by such other evidence as the register and receiver may require, that personal service cannot be made.”

The answer also pleaded certain facts as a counterclaim, which it is not necessary now to notice. The plaintiff demurred to this answer on the ground that it did not state a defense. The court overruled the demurrer, and the plaintiff appealed.

Appellant contends that respondent’s allegation that the service of the contest notice was made in no other way than by publication, and that no affidavit was made and filed justifying such publication, was not an effective averment of such facts, because made upon his information and belief. This contention is plainly untenable. It is ordinarily held that a party cannot raise an issue by denying knowledge or information sufficient to form a belief concerning facts which, from their nature must be known to him, or which he has ready and convenient means of knowing. The cases cited by appellant are of this character But this is not such a case. The defendant here was not attempting to deny, and thus put in issue, a fact alleged by plaintiff, but was himself averring an affirmative fact. If it was in the nature of new matter, it would be deemed controverted, under Section 4933, Comp. Laws. And in such case it could not harm the plaintiff or help the defendant until the fact was proved by competent evidence; so that the form of the averment was not material. Bailey Code Pl. 50; Iron Works v. Smith, 4 Duer 362, 374. The complaint contained no allegation concerning this fact. Whether or not it was defective on that account is a question not before us; but it is plain that the allegation of the answer was not an attempted denial of any allegation of the complaint, and it might properly be made upon information and belief. Besides, whether Conway was personally served or not, or whether an affidavit, if required, was actually made or not, were not facts of which respondent could be supposed to have personal or positive knowledge. Nor does it appear from either the complaint or the answer that the records of the land office show that an affidavit Was made. Suppose it is a fact that the files and records of the land office do not show that such affidavit ever was made, and the respondent, deeming such affidavit essential, had desired to take advantage of the fact, how could he, having no personal knowledge in the premises, have pleaded the fact except upon information and belief? In any view of the question we are of the opinion that the allegation was proper in form.

For the purpose, then, of determining the question raised by this demurrer, it must be taken as a fact that the only service made upon Conway in the contest proceedings was by publication, and that no affidavit was made or filed showing that personal service could not be made. It is affirmatively alleged in the answer that rule 12, prescribed by the secretary of the interior, allowed service of contest notice by publication only when it is shown by affidavit of the contestant, and other evidence, that personal service cannot be made. Such a rule is reasonable and right, and a contrary rule or practice...