State v. Coughran

• Decision Date: 04 April 1905
• Citation: 103 N.W. 31,19 S.D. 271
• Parties: STATE et al. v. COUGHRAN et al.
• Court: South Dakota Supreme Court

103 N.W. 31

19 S.D. 271

STATE et al. v. COUGHRAN et al.

Supreme Court of South Dakota

April 4, 1905

Appeal from Circuit Court, Minnehaha County.

Action by the state and John L. Lockhart, as trustee for the state against Eugene W. Coughran and another. From a judgment for plaintiffs, defendant Coughran appeals. Affirmed.

Aikens & Judge, for appellant. Davis, Lyon & Gates, for respondents.

CORSON P. J.

This is an action to quiet title to a certain lot in the city of Sioux Falls. The complaint is in the usual form, and, the findings and judgment being in favor of the plaintiff, the defendant Coughran has appealed.

The defendants, in their answer, deny that the plaintiff was the owner of the property, admit that they claim title to said premises, and deny that such claim is without right. As the defendant F. W. Grow has not appealed, the defendant Coughran only will be referred to hereafter in this opinion. The defendant Coughran then alleges as follows: "(4) And the defendant Coughran states the nature of his claim and estate in the real property described in the complaint as follows." He then proceeds to set up the execution of a tax deed to himself for the property in controversy, bearing date of the 4th day of June, 1894, and duly recorded on the 10th day of July following in the office of the register of deeds of the county of Minnehaha, and alleges that ever since said date he has been, and was at the time of filing his answer, in the exclusive, adverse possession of the said premises, by his tenant, F. W. Grow. Defendant further alleged that subsequent to the execution of said tax deed he paid the taxes upon said premises, and that, by virtue of the said tax-sale deed and the possession of said premises, the defendant claims title and right of possession of the said premises, and is the owner of the same.

On the trial the defendant and appellant objected to any evidence on the part of the plaintiff on the ground that the defendant pleaded his title as a counterclaim, and that, plaintiff not having replied thereto, the defendant's title was admitted. The circuit court having held, as claimed by the defendant, that the answer setting up the title of the defendant constituted a counterclaim, requiring a reply, the plaintiff, upon motion, was allowed to file a reply thereto in which it set up certain irregularities in the assessments which plaintiff claimed rendered the tax deed invalid.

The court found certain procedures of foreclosure in an action by the Northwestern Mortgage Trust Company against Jones and wife, under which plaintiff claims, and also found that the certificate of sale was duly assigned and transferred by said Northwestern Mortgage Trust Company to John L. Lockhart, trustee for the state of South Dakota; that thereafter a sheriff's deed was duly executed to said Lockhart, and that since the 30th day of January, 1896, the state of South Dakota has been the absolute owner of the premises in controversy; that John L. Lockhart has held, and still continues to hold, title to the premises in his name as trustee. The court then found the execution of the tax deed to Coughran for the taxes of 1890; that Coughran in July, 1896, instituted an action against said Jones and wife for quieting title to said premises, and thereafter, on or about October, 1896, obtained possession of said premises, and has since remained in possession of the same; and that Coughran paid certain taxes thereon. The court, in its tenth finding, finds "that no notice of intention to apply for or to take a tax deed against said premises in pursuance of the tax sale for the taxes of the year 1890, as required by law, was ever given or ever served upon said William S. Jones, in whose name said premises were taxed, and who was in possession thereof, or upon any member of his family." The court also finds certain other irregularities in the tax proceedings, and concludes that the tax deed described in the defendant's answer is null and void, and that the same should be canceled of record; that the plaintiff the state of South Dakota is the absolute owner in fee of said premises; that the defendants, nor any of them, have any right, title, or interest in the said premises; and that the plaintiff should repay to the said Coughran the full amount of taxes paid by him.

The appellant contends that the court erred in permitting plaintiff to file a reply to his alleged counterclaim, on the ground that the court, in allowing the plaintiff to file a reply, abused its discretion and violated one of the rules of the court. The action was commenced July 9, 1897--less than three years after the recording of the defendant's tax deed. The reply was served April 20, 1901--something less than four years after the answer was served and filed. The rule of the court referred to by defendant is as follows: "No order allowing a party to plead after the time limited by the Code *** shall be granted unless that party applying therefor shall have served upon the adverse party, with his notice of motion, an affidavit of merits, together with a copy of his proposed pleading."

It is insisted on the part of the respondent that the averments in the answer did not constitute a counterclaim, and were not designated as such therein, and therefore it did not require a reply. It further insists that, if a reply was required the granting of plaintiff's motion for leave to reply was entirely within the discretion of the trial court, and that in allowing the same to be filed the court committed no error. We are inclined to take the view that the plaintiff was right in treating the answer as a defense not requiring a reply, and not as a counterclaim. The plaintiff alleged title in itself, and the defendant alleged that he was the owner of the premises under and by virtue of the tax deed set out in the answer, and the issue was therefore squarely presented as to whether or not the plaintiff was the owner of the property. The plaintiff had alleged ownership, and, that ownership being denied, it was competent for the defendant to disprove the plaintiff's ownership by showing that he (the defendant) was the owner, and pleading his tax deed was simply another way of denying the plaintiff's ownership. It will also be noticed that the defendant, in his answer, does not designate the matter pleaded therein as pleaded by way of counterclaim, or as constituting a counterclaim, and there is no prayer for judgment. We are of the opinion, therefore, that the facts stated constitute a defense only, and that no reply was required thereto. In view of the misunderstanding apparently arising in the courts as to whether the facts pleaded in the answer should be treated as a defense or a counterclaim, we think such a rule as was adopted in Wisconsin, in Stowell et al. v. Eldred, 39 Wis. 614, should be adopted here. In that case the learned Supreme Court of Wisconsin says: "On former occasions this court has had under consideration answers containing averments of fact so pleaded that it was doubtful whether counterclaims were predicated upon them, or whether they were alleged merely as defenses, and by argument and the application of various tests the court has determined the character of these pleadings. Should it be asserted that there is an inconsistency in those decisions, we are not prepared to dispute the assertion. The rule on this subject should be certain and uniform. In order that it may be so in the future, we take this occasion to say that hereafter no averment in an answer will be held to constitute a counterclaim unless it is so denominated, and the appropriate relief prayed. Wanting these requisites, the pleading will be held to be a defense only. It is so easy to commence a counterclaim by denominating it a counterclaim, and to close it with a demand for relief, that it is not unreasonable, and does no...