State v. Kemmerer

• Decision Date: 31 December 1900
• Citation: 84 N.W. 771,14 S.D. 169
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and appellant, v. EMMA KEMMERER, Defendant and respondent.
• Court: South Dakota Supreme Court

14 S.D. 169

84 N.W. 771

STATE OF SOUTH DAKOTA, Plaintiff and appellant,

v.

EMMA KEMMERER, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Faulk County, SD Hon. Loring E. Gaffy, Judge. Affirmed John L. Pyle, Attorney General Alva E. Taylor, Assistant Attorney General Attorneys for appellant. W. F. Bruell Attorney for respondent. Opinion filed December 31, 1900

CORSON, J.

This is an action to quit title to a quarter section of land alleged to have been conveyed by the defendant, Emma Kemmerer, and her husband, Abram Kemmerer, to John L. Lockhart, as trustee for the plaintiff. The deed is set out in the complaint, and the granting clause is as follows:

“Do hereby convey, grant, remise, release, and quitclaim unto John L. Lockhart, trustee for the state of South Dakota, and to his assigns forever, all the [their] right, title, estate, interest, property, and equity in and to the following real property.”

The complaint then alleges that prior to the time of the execution of said deed a mortgage had been executed upon said premises by the defendant and her husband, that said mortgage had been foreclosed by advertisement, and that the certificate of sale had been assigned to the defendant, and the defendant claims some right, title, and interest in and to said property by virtue of said certificate. It is further alleged that the plaintiff is the owner of the property in fee simple, and that the defendant has no right, title, or interest in or to the same by virtue of said assignment of said certificate of sale, and that the claim of an estate or interest in said real property made by the defendant is adverse to the plaintiff; and plaintiff demands judgment that the right, title, and interest of said defendant under said certificate of sale be determined, and that the plaintiff be decreed to be the owner in fee simple of the property, and that the defendant be decreed to have no estate, right, title, or interest therein. The defendant in her answer admits the execution and foreclosure of the mortgage as alleged in plaintiff’s complaint, admits that the certificate of sale was assigned to her, and alleges that said certificate was sold and assigned to her by W. F. Bruell for a valuable consideration. Defendant further admits that she executed the quitclaim deed set forth in the complaint, but denies that she was the owner of the premises, and denies that she executed the quitclaim deed in any other capacity than that of wife of Abram Kemmerer. Defendant further denies that the plaintiff is the owner of the premises described in said deed, and alleges that she is now, and ever since April 19, 1897, has been, the lawful owner and holder of said certificate of sale. Defendant denies each and every allegation of the complaint, except as admitted or qualified in said answer. To this answer the plaintiff interposed a demurrer upon the ground that said answer does not state facts sufficient to constitute a defense to the cause of action set forth in plaintiff’s complaint. The demurrer was overruled by the court, and, the plaintiff electing to stand upon said demurrer and declining to introduce any evidence on behalf of the plaintiff, a judgment of dismissal was entered. From this judgment the plaintiff has appealed to this court.

It is contended on the part of the state that it became the owner of the property described by virtue of the deed from the defendant and her husband, and that, as in the granting clause of the deed the words “convey and grant” are used, any title, interest, or lien that she may have acquired subsequently to the execution of the deed inured to the benefit of the plaintiff. The state relies upon Section 3249, and subdivision 4, § 3254, Comp. Laws, as supporting its contention. Section 3249 reads as follows:

“From the use of the word ‘grant’ in any conveyance by which an estate of inheritance or fee simple is to be passed, the following covenants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs and assigns, are implied unless restrained by express terms contained in such conveyance; (1) That previous to the time of the execution of such conveyance, the grantor has not conveyed the same estate, or any right, title or interest therein, to any person other than the grantee- (2) That such estate is, at the time of the execution of such conveyance, free from incumbrances done, made or suffered by the grantor, or any person claiming under him. Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance.”

Subdivision 4 of Section 3254 reads as follows:

“Where a person purports by proper instrument to grant real property in fee simple, and subsequently acquires any title or claim of title thereto, the same passes by operation of law to the grantee, or his successors.”

The plaintiff further claims that, from these provisions, of the statute, any after-acquired title by Mrs. Kemmerer inures to the benefit of the state, and that the incumbrance upon the property (placed thereon by herself and husband) under which she now claims will constitute no lien upon the property as against this plaintiff, as by Section 3249 aforesaid there is an implied warranty that the estate “is free from incumbrances done, made or suffered by the grantor, or any person claiming under” her. The defendant, on the other hand insists that the deed set out in the complaint is simply a quitclaim deed, and does not purport to pass a fee simple title, and does not come within the provisions of either section of the statute quoted, and the defendant was not precluded from acquiring an interest in or lien upon said premises...