Roy v. Harney Peak Tin Mining

• Citation: 21 S.D. 140,110 N.W. 106
• Court: Supreme Court of South Dakota
• Decision Date: 21 December 1906
• Parties: WILLIAM ROY et al., Plaintiffs and respondents, v. THE HARNEY PEAK TIN MINING, MILLING & MANUFACTURING COMPANY, A. R. Ledoux, Receiver, Defendants and appellants.

21 S.D. 140

110 N.W. 106

Milling & Man'g Co.,(1907)

WILLIAM ROY et al., Plaintiffs and respondents, v. THE HARNEY PEAK TIN MINING, MILLING & MANUFACTURING COMPANY, A. R. Ledoux, Receiver,

Defendants and appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Pennington County, SD

Hon. Levi McGee, Judge

Reversed

Chauncey L. Wood, Edwin Van Cise, Frank L. Grant

Attorneys for appellants.

Fred H. Whitfield

Attorney for respondents.

Opinion filed December 21, 1906

CORSON, J.

This is an appeal from orders of the circuit court overruling defendants’ demurrers to the complaint.

The plaintiffs in their complaint after setting forth the incorporation of the defendant, the Harney Peak Tin Mining, Milling & Manufacturing Company, the appointment of defendant Ledoux as receiver, the application of the plaintiffs to enter a 160-acre tract of land as a homestead near Keystone in Pennington county alleges as follows: That thereafter the defendant A. R. Ledoux, as receiver for the defendant corporation, by and through his local resident agent, one Frank P. Williams, threatened to oppose said final entry and have said final receipt canceled, and prevent the plaintiffs from receiving a patent to said lands and homestead on behalf of the defendant corporation, and was about to file a protest or contest, after said final proof, for said purpose. Thereupon the plaintiffs and the defendant A. R. Ledoux, as such receiver, by and through his said local agent, Frank P. Williams, made and entered into a contract or agreement whereby it was mutually agreed that, if the said plaintiff would convey to the defendant A. R. Ledoux, as receiver, a certain five-acre strip of said homestead lands above mentioned, the defendants would withhold all opposition to said final entry and the issuance of patent, and would not contest, protest, or oppose in any manner the claim of plaintiffs to their said homestead lands or the issuance of patents therefor, and would put plaintiffs to no costs, expense, trouble, or annoyance in regard thereto. That, pursuant to said agreement and for no other consideration, the plaintiffs duly made, executed, acknowledged, and delivered to the said defendant A. R. Ledoux, receiver, their certain warranty deed, dated October 15, 1900, and thereby conveyed to the said defendant A. R. Ledoux, in fee, five acres of said homestead lands as therein described, being the identical strip and portion of said land which was so mutually agreed should be conveyed. That the plaintiffs did and performed all the conditions and obligations of said agreement on their part to be kept and performed; and said defendant A. R. Ledoux, receiver, has, ever since said delivery of said deed, kept and retained the same. Defendants further allege that said Ledoux, in violation of said agreement, filed in behalf of the said corporation a protest against the plaintiff’s said entry of his said homestead and demanded the cancellation of the said entry; that thereupon a hearing was had and the said protest dismissed; that subsequently a second protest was filed, and, upon a hearing, the same was dismissed; that Ledoux filed and had recorded the said deed so executed and delivered to him by the plaintiffs; that the plaintiffs, by reason of the said protest, were put to great expense in procuring counsel and witnesses, and that the defendants are insolvent. Plaintiffs further allege that the United States Circuit Court in which the action was pending, in which the said Ledoux was appointed receiver, authorized the plaintiffs to bring this action against the said receiver and the said corporation; “that demand has been made upon said receiver for the cancellation and surrender of said deed which has been refused by the defendant and the plaintiffs, therefore, demand judgment against defendants for the cancellation and return of the deed … and for the reconveyance and return to the plaintiffs of the said tract of land therein described and thereby conveyed, and for such other and further relief, etc.” The demurrer of the defendant corporation was interposed upon the following grounds:

(1) The court has no jurisdiction of the subject of the action; and

(2) that the complaint does not state facts sufficient to constitute a cause of action in favor of the plaintiffs, or either of them, against this defendant.

The demurrer of the defendant Ledoux, as receiver, was upon the same grounds.

The learned counsel for the appellant have specified in their brief a large number of objections to the sufficiency of the complaint, but in the view we take of the case, it will only be necessary to notice the third and sixth objections. The third...