Spackman v. Gross

• Decision Date: 30 March 1910
• Citation: 126 N.W. 389,25 S.D. 244
• Parties: SPACKMAN v. GROSS, Sheriff.
• Court: South Dakota Supreme Court

126 N.W. 389

25 S.D. 244

SPACKMAN v. GROSS, Sheriff.

Supreme Court of South Dakota

March 30, 1910

Appeal from Circuit Court, Day County.

Mandamus by H. L. Spackman against Philip A. Gross, as sheriff of Day County. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Affirmed.

Bouck & McCarthy and Howard Babcock, for appellant.

Sears & Potter, for respondent.

SMITH J.

This is a proceeding by mandamus to compel the defendant as sheriff of Day county to execute to plaintiff a sheriff's deed of a certain quarter section of farm land in said county. Issues of fact were presented by the return to the writ, which were duly tried by the court upon evidence submitted by both parties, and the court thereupon made its findings of fact and conclusions of law, which show substantially the following facts: John M. O. Scaarhaug was owner of this land on December 15, 1903, and on that day executed and delivered to the Sisseton Loan & Title Company a mortgage to secure payment of the sum of $210, which mortgage was recorded on the 3d day of March, 1904. On January 9, 1905, Scaarhaug mortgaged the same lands to Peter C. Johnson to secure the sum of $1,561.65, which mortgage was recorded on January 11 1905. On November 15, 1906, Scaarhaug mortgaged the said lands to the plaintiff, H. L. Spackman, to secure the sum of $212, which mortgage was recorded on November 2, 1906. On December 29, 1906, the mortgage to the Sisseton Loan & Title Company was foreclosed by advertisement, and the premises sold by the defendant, as sheriff of said Day county, to the mortgagee, the Sisseton Loan & Title Company, for the sum of $303.87, and a sheriff's certificate of sale duly issued to the said purchaser, which was recorded in the office of the register of deeds on January 8, 1907. On January 29 1907, plaintiff, H. L. Spackman, redeemed the lands from the sale to the Sisseton Loan & Title Company, by paying to defendant, the sheriff of Day county, the sum of $305.37 being the amount of said sale and interest to that date, and at the same time served upon the defendant as sheriff a notice of redemption, together with a copy of the mortgage under which Spackman claimed to redeem, the record thereof certified by the register of deeds of said county, and also an affidavit by said Spackman, showing the amount then actually due on the lien. A duplicate copy of such notice, mortgage, record thereof, and affidavit were at the same time delivered to and filed with the register of deeds of said county and his fees therefor paid. The defendant as sheriff thereupon executed to said plaintiff, Spackman, a certificate of redemption, which was duly recorded in the office of the register of deeds on the same day. The notice of redemption and certificate of redemption were recorded at length by the register of deeds, and entered in the numerical index kept in his office. On December 28, 1907, one year less a day from the day of the foreclosure sale under the Sisseton Loan & Title Company's mortgage, Johnson, as the holder of the second mortgage upon the said lands, attempted to redeem the land from the redemption made by Spackman on January 29, 1907, and served upon the defendant as sheriff the notice of redemption, affidavit, and record of his mortgage, and a check for $325. The check for the redemption money was mailed to Spackman at Sisseton, who refused to accept the same, or in any way to recognize the right of Johnson to redeem, and assigned as his reason therefor that such attempted redemption was not made within 60 days after the date of Spackman's redemption. On January 17, 1908, plaintiff, Spackman, presented to defendant, as sheriff of Day county, a sheriff's deed to himself as redemptioner, and demanded the execution thereof, under his redemption of the premises made on January 29, 1907. The sheriff refused to execute said deed, and this action was commenced to compel its execution. After the year of redemption had expired, and about the time of the commencement of this action, the notice of redemption and the certificate of redemption issued to Spackman on the 29th day of January, 1907, were found in the possession of the First National Bank of Sisseton. It is contended by the plaintiff that said papers reached the First National Bank of Sisseton by some unauthorized act of the register of deeds. There is no material conflict of evidence except as to this one fact. Upon this issue of fact the court found that: "The said plaintiff did on said 29th day of January, 1907, cause the said notice of redemption to be recorded in the said office of the register of deeds of Day county, and on the next day, the 30th day of January, 1907, did withdraw said notice of redemption from the office of said register of deeds, and thereafter the same was not in the custody or in the office of the said register of deeds, the same having remained in its custody only during the days of January 29, and 30, 1907."

Upon this appeal appellant contends: First, that the evidence is insufficient to sustain the finding of the trial court that the plaintiff withdrew the said notice of redemption from the office of the register of deeds, and that the same was not thereafter in the office or in the custody of the said register of deeds; second, that it is not necessary, as a matter of law, that the notice of redemption of plaintiff, or his certificate of redemption, should remain in the custody and in the office of the register of deeds of Day county, because the record thereof at length in the register of deeds office and the plaintiff's notice of redemption to the sheriff were sufficient as a matter of law, even though the plaintiff had withdrawn the notice and certificate from the office of the register of deeds; third, that a valid redemption was not made by Johnson for the reason that he did not serve his notice of redemption, and pay the money necessary to redeem, within 60 days after plaintiff's redemption.

Upon the question of the withdrawal of the notice and certificate of redemption by plaintiff from the register of deeds office in Day county there was a direct conflict in the evidence. If the testimony of the plaintiff and his attorney Howard Babcock is to be accepted as true, it would be absolutely certain that the withdrawal of the notice and certificate from the register of deeds office was wholly without the knowledge, consent, or procurement of the plaintiff. On the other hand, if the testimony of Mr. Stearns, the register of deeds, who received and recorded the notice and certificate is to be believed, then the withdrawal of these papers was by direction of the plaintiff. It is conceded that the plaintiff's notice and certificate of redemption were found in the First National Bank of Sisseton with the mortgage which the Scaarhaugs had theretofore given to the plaintiff, and no explanation whatever appears in the record as to the manner in which said First National Bank came into possession of these papers. It does appear, however, that the plaintiff, Spackman, had a safety deposit box in said bank, in which he kept his private papers. The notice and certificate of redemption were produced by the bank at the request of Mr. Bouck, one of appellant's counsel, about the time this action was begun, but the record is silent as to whether the same came from the safety deposit vault rented by Spackman; the only explanation being that an officer of the bank, Mr. Morris, "seemed to have all the papers there."

An extended review of the evidence would be of no value in the application of the legal principles involved in determining the sufficiency of the evidence upon a review of findings of fact. The precise question here is as to the extent and character of the review in this court of the evidence upon exceptions to the findings of the trial court. Section 463, Code Civ. Proc., provides that: "Any question of fact or of law decided upon trials by the court or by referee, may be reviewed when exceptions to the findings of fact have been duly taken by either party and returned." This provision was first considered by this court in Randall v. Burke Township, 4 S. D. 337, 57 N.W. 4. It is there stated that this chapter was copied from the statutes of Wisconsin. The Supreme Court of that state, before our adoption of their statute, had held that under this statute it became the duty of the court "to examine the testimony and to decide questions of fact according to the weight of the evidence." The Wisconsin statute was first considered by that court in Snyder v. Wright, 13 Wis. 689, and was severely criticised by Dixon, C. J., who says: "By it the court of last resort is in a great measure deprived of the opportunity of scrutinizing the interest, motives, inclination, and prejudices of the witnesses, their means of obtaining correct information, and the use they have made of them, their powers of perceiving facts, the attention which they gave, and their capacity for remembering and stating them. The opportunity of observing their manner and deportment, the effect of a cross-examination, and many other circumstances which are often of quite as much importance in ascertaining the truth as the answers themselves, are wholly lost. Denied these advantages, the court is compelled to decide upon the answers alone, and give its opinion against that of a court possessing them. Will any one say that such a mode of trying facts is the best and most satisfactory, or that it will not unavoidably lead to many erroneous and unjust conclusions? We think not. It seems to us that all must concede that such will be the result."

In Randall v. Burke Township, supra, Justice Corson, commenting on the decision of that court in Fisher v. Trust Co., 21 Wis. 73, says: "The rule...