Stoddard v. Lyon

• Decision Date: 11 June 1904
• Citation: 99 N.W. 1116,18 S.D. 207
• Parties: STODDARD v. LYON et al.
• Court: South Dakota Supreme Court

99 N.W. 1116

18 S.D. 207

STODDARD v. LYON et al.

Supreme Court of South Dakota

June 11, 1904

Appeal from Circuit Court, Brule County.

Action by Marcus L. Stoddard against Henry W. Lyon, James A. Smith and others. From a judgment for plaintiff, defendant Smith appeals. Reversed.

James Brown, for appellant. Preston & Hannett, for respondent.

CORSON P. J.

This is an action to foreclose a mortgage executed by the defendants Henry W. Lyon and Libbie Lyon, his wife, to the defendant George W. Lumley, and assigned by him to the plaintiff. Lumley, subsequently to the execution of the note and mortgage and their transfer by him to the plaintiff, became the owner of the property. The defendant James A. Smith claims the property by virtue of a tax deed executed to him by the treasurer of Brule county March 9, 1899, for the delinquent taxes of 1895, and for which the property was sold in 1896, and alleges that said tax deed has been of record more than three years, and pleads the statute of limitations as a defense to the foreclosure of the mortgage. So far as the record discloses, Smith is the only defendant appearing in the action. The plaintiff, in his reply to the answer of the said Smith, admits that the land described in the plaintiff's complaint was subject to taxation for the year 1895; admits that the said tax deed has been recorded more than three years, and that no action has been instituted to cancel said deed, and that the plaintiff has not deposited in court for the benefit of the said Smith, the defendant herein, any amount whatever. For a further reply plaintiff avers that there was no assessment made of the property described in the said tax deed for the year 1895; that no notice of sale of the said real property for taxes was given and published as required by law in the year 1896; that the county treasurer of said Brule county made no return of sale of the said property in the year 1896, as required by law that no notice was served upon the owner of the said land and upon the person in whose name the same was taxed, and upon all persons having an interest therein, after the expiration of two years from the alleged date of the said treasurer's tax sale, that the right of redemption from said sale would expire and the deed of said property be made at the expiration of 60 days after said alleged notice. Plaintiff further alleges that by reason of the said proceedings hereinbefore stated said alleged tax deed is void, and that the alleged proceedings, including the assessment and sale, and the assigning of the said certificate of sale, and the execution of the said alleged tax deed therefor, were and are void and of no effect. The case was tried to the court without a jury, and it found, among other things, the facts substantially as set out by the plaintiff in his reply, and from its findings the court concludes that the defendant James A. Smith has no right, claim, lien, or equity of redemption in the said mortgaged premises, or any part thereof; that his alleged deed is absolutely void, for the reason that there was no assessment made of the premises in the year 1895; that no description of the said real estate appears upon the original tax list for the year 1895; that no notice of sale of the said real estate for taxes delinquent in 1895 was given and published in the year 1896; and that no return of any sale of said property in 1896 was made by the county treasurer of Brule county; and that the plaintiff was entitled to a foreclosure of his mortgage, and a sale of the mortgaged premises to satisfy the same.

The first question presented is, did the admission of the promissory note described in the complaint over defendant Smith's objection that there was no evidence offered or given proving or tending to prove its execution by Lyon and wife constitute reversible error? It is contended by the appellant that it was incumbent upon the plaintiff to prove the signatures of Lyon and wife to the note before it was admissible in evidence, as its execution and delivery were denied by the answer. It is contended by the respondent that the action was not to recover a money judgment against Lyon and wife, but only for the purpose of foreclosing a mortgage, and, the mortgage being admissible in evidence for the reason that it had been duly recorded, and by the terms of the mortgage the amount secured thereby was agreed to be paid, proof of the genuineness of the signatures of Lyon and wife was not necessary. We are inclined to take the view that the appellant is right in his contention, and that it was error for the court to admit the note in evidence over the objection of the plaintiff's counsel calling the attention of the court specifically to his objection to the admission of the same. The recital in the record is that on the trial the following proceedings were had: Plaintiff offered in evidence the note sued upon in this action, dated November 17, 1888, purporting to have been signed by Henry W. Lyon and Libbie Lyon, payable to George W. Lumley, or bearer, October 1, 1893; to which the defendant Smith objected on the ground that no foundation had been laid for the introduction of the note, there being no proof of its execution. Objection overruled, and the defendant excepted. It will thus be seen that the attention of the court and counsel was called directly to the specific objection that there was no proof of the execution of the note by Lyon and wife. The rule seems to be well settled that in states where the law has not been changed by statute the party offering in evidence an unrecorded instrument, the execution and delivery of which has been denied by the opposing party, must, if objection be made, prove the genuineness of the purported signatures to the instrument. In paragraph 1 of the complaint it is alleged that Lyon and wife executed and delivered to Lumley their promissory note in writing, describing the same. Defendant Smith, in his answer, denied that he had any knowledge of information sufficient to form a belief as to whether any of the allegations contained in paragraphs 1 to 10, inclusive, of the plaintiff's complaint, were true. Section 126 of the Code of Civil Procedure provides: "The answer of the defendant must contain: (1) A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. ***" There is no presumption in this case that the defendant had any knowledge or information in regard to the execution of the note, or the genuineness of the signatures of the parties who purported to sign it, and hence the answer was sufficient to raise an issue as to the execution and delivery of the note. The burden of proof in such issue therefore was upon the plaintiff, and until he had established the fact that the purported signatures of Lyon and wife were their genuine signatures, the note was not admissible in evidence.

It is claimed by the respondent that the possession of the note by plaintiff was sufficient. Such possession would probably be sufficient to establish the delivery of the note after proof of the genuineness of the signatures, but possession would not prove or tend to prove the genuineness of the signatures. Mr. Greenleaf, in his work on Evidence, in speaking of the proof required in certain cases, says: "After the note or bill is produced, the next step is to prove the signature of the defendant, where, by the nature of the action, or by the state of the pleadings, or the course of the court, this proof may be required." 2 Greenl. § 158. In the case at bar the state of the pleadings required such proof, for, as before stated, the execution and delivery of the instrument had been denied by the defendant. Baker v. Warner, 16 S.D. 292, 92 N.W. 393. The learned counsel for plaintiff have sought to draw a distinction between the case last cited and the case at bar, but, in our opinion, there is in fact no distinction between the two cases. In that case the execution of the indorsement was denied by the defendant, and this court held that after such a denial it was necessary for the plaintiff to prove the signature of the indorser. The court in its opinion, says: "It is contended that the court erred in receiving the three notes sued upon in evidence, for the...