Tilton v. Flormann

• Decision Date: 22 July 1908
• Citation: 117 N.W. 377,22 S.D. 324
• Parties: TILTON v. FLORMANN et al.
• Court: South Dakota Supreme Court

117 N.W. 377

22 S.D. 324

TILTON v. FLORMANN et al.

Supreme Court of South Dakota

July 22, 1908

Appeal from Circuit Court, Lawrence County.

Action by Samuel Tilton against Charles Flormann and another. From a judgment dismissing the action, and from a denial of a new trial, plaintiff appeals. Affirmed.

Fuller J., dissenting.

A. K Gardner and Samuel C. Polley, for appellant.

Eben W Martin and Norman T. Mason, for respondents.

CORSON J.

This is an appeal by the plaintiff from a judgment in favor of the defendant and order denying a new trial. The action was instituted by the plaintiff to recover from the defendant the possession of a mining claim, known as the "M. C. Lot No. 403," situated in Greenwood Mining district, Lawrence county, embracing 84.22 acres, and also to cancel a tax deed issued by the county treasurer of Lawrence county to the defendant Frederica Flormann.

It is alleged in the complaint that the plaintiff is the owner and entitled to the possession of the said mining property, and that the defendant unlawfully and wrongfully entered upon and detains possession of the same, and that the tax deed is void and is a cloud upon plaintiff's title. The defendants denied the plaintiff's title and right of possession and set up a number of other defenses, among which was: That the premises described in the complaint were and are one of two 80-acre placer claims, which were, during the years 1884, 1885, and part of 1886, claimed and occupied by the Greenwood Gold Mining & Milling Company, as and in connection with its mill and mill site, and in connection with a large number of unpatented lode mining claims then being worked and operated by it; that early in 1885 said company became heavily involved financially, and its properties were sold under execution, and the same were conveyed to a new company known as the Greenwood Gold Mining Company, which, also failing in its operations, abandoned the same in 1887; that since said date the defendants Frederica Flormann and husband have been in the open, exclusive, and notorious possession of the same, claiming title thereto; and that the defendant Frederica Flormann has paid the taxes thereon from the year 1887 to the year 1903 inclusive, and made improvements thereon of the value of $1,000. In the view we take of the case, it is not necessary to set out the other defenses of the defendants in this opinion.

The case was tried to the court without a jury, and the court in its findings found: "(1) That plaintiff was not at the time of the commencement of this action, nor at any time since, the owner nor entitled to the possession of the property described in paragraph 1 of the complaint, nor any part thereof. *** The said plaintiff and his grantors and predecessors in interest have never been in the possession of said premises. (2) That the tax deeds described in paragraph 2 of plaintiff's complaint does not cast a cloud upon any title of plaintiff. The said tax deed is void upon its face for the reason that it is not in the form provided by law." That the defendant Frederica Flormann has been in the actual, adverse, open, continuous, peaceable, and exclusive possession of the lands and tenements described since the year 1887. And that the said defendant has placed upon said premises, buildings, and other improvements of the value of $2,000 and paid the taxes thereon. The court made other findings not material to the decision of this case. From its findings so made, the court concludes as matter of law that the plaintiff is entitled to no relief whatever in this action, and that judgment should be entered in favor of the defendants, dismissing plaintiff's complaint and cause of action upon the merits and for costs. Judgment was thereupon entered dismissing the action. A motion for a new trial was made and denied.

It is disclosed by the plaintiff's evidence that a United States patent was issued to Robert Flormann for the said premises and filed for record on the 14th day of February 1888, that subsequently the said Robert Flormann conveyed the said premises to Joseph O. Rutter, that thereafter the title of Joseph O. Rutter was conveyed to George B. Gafford, and that George B. Gafford conveyed the same to Cora A. Steward, who subsequently conveyed the same to the plaintiff in this action. The defendants thereupon, over the objection of the plaintiff, introduced in evidence: Exhibit A: "A record of a location certificate dated May, 18, 1884, and filed for record May, 21, 1884, claiming 160 acres of placer ground, commencing on Box Elder creek about 130 feet northwest of the north end center stake of Last Chance Lode, thence northwest, by Box Elder creek, about 1 1/2 miles, and extending from rim rock to rim rock, containing about 160 acres, and signed by Robert Flormann, and seven other co-locators." Also, a deed from his seven co-locators to Robert Flormann of their interest in said location, bearing date of May 31, 1884, and filed for record June 4, 1884. Also, a warranty deed dated April 9, 1884, executed by Robert Flormann to Mathew Laflin and Joseph Taylor and filed for record May 30, 1884, for this property, in which it was recited that for a valuable consideration the said Flormann has granted, bargained, and sold to the said Laflin and Taylor the following described lodes, mines, and mining property, situated in Greenwood mining district, in the county of Lawrence and territory of Dakota, and known and described as follows, to wit: The Last Chance, Florence, Victor, Merrimac No. 1, Merrimac No. 2, Merrimac No. 3, Pantheon, San Pedro, Nevada, Montana, and Box Elder Lodes; also, the Box Elder water right, Hay Creek water right, and two 80-acre mill tracts, all situated in said Greenwood mining district, which deed contains covenants of general warranty. Defendant also introduced in evidence a mining deed dated May 31, 1884, and filed for record January 9, 1885, executed by said Joseph Taylor and Mathew Laflin granting the Box Elder water right, Hay Creek water right, and two 80-acre mill tracts in the Greenwood mining district, to the Greenwood Mining & Milling Company, a corporation. The defendant then offered in evidence Exhibit E: A certified copy from the United States Land Office at Washington, D. C., of an abstract of title upon which the patent to Robert Flormann, No. 12,722, was issued for the purpose of showing that the patent introduced by the plaintiff was issued upon the location introduced in evidence by the defendant, which abstract of title shows the location certificate by Robert Flormann and his seven co-locators dated May 13, 1884, and recorded May, 21, 1884, and the deed from his seven co-locators to Robert Flormann of the 160 acres of placer ground described in said location notice. The defendants further offered evidence, over plaintiff's objection, tending to prove: That neither Robert Flormann nor Taylor and Laflin nor the Greenwood Mining Company had any other mill site or placer location in said Greenwood mining district, and that the said Greenwood Mining & Milling Company erected upon the premises in controversy a boarding house, blacksmith shop, and other improvements, and on the adjoining 80 acres a quartz mill and other improvements; that the defendants had been in the exclusive, open, and notorious possession of the said mining claim No. 403 since 1887, and had paid the taxes on the same up to 1903, except one year, for which year Frederica Flormann took a tax deed; that she had made improvements thereon of the value of $2,000, and was in possession of the same at the time of the trial; that neither Joseph O. Rutter nor any of his grantees had ever at any time been in possession of the premises in controversy.

Before proceeding to discuss the merits of the case, a preliminary question is presented for our decision by the counsel for respondent, and that will be first disposed of. It appears from respondent's additional abstract that, about eight months after the bill of exceptions was settled, the learned circuit court permitted the bill of exceptions to be amended over the objection and exception of counsel for respondent, and without good cause or any cause therefor being shown, by inserting therein specifications of the particulars in which the evidence is insufficient to support the findings of the court. The respondents move that the specification of errors so allowed by the said amendments to the bill of exceptions be stricken from the record, and that the same be, by the court, disregarded so far as the same are not properly set forth in the original bill of exceptions, and that such specifications in the original bill be disregarded, for the reason that they do not specify the particulars wherein the evidence is alleged to be insufficient to support the courts decision. The statement made in the respondent's additional abstract is not controverted by the appellants, and hence must be taken as true. This motion must therefore be granted so far as the bill of exceptions was allowed to be amended by inserting therein the particulars in which the evidence was insufficient to support the findings of the court, for the reason that the court, in the absence of good cause shown, was without jurisdiction to allow the amendment to be made, as the amendment had the effect of settling a new bill of exceptions after the time allowed by law in the absence of good cause shown and without fixing a new time for the settlement of the bill of exceptions, as provided in section 306 of the Revised Code of Civil Procedure. The question presented by this motion was so fully discussed by this court in McGillycuddy v. Morris, 7 S. D. 592, 65 N.W. 14, McPherson v. Julius, 17 S.D. 98, 95 N.W. 428, and Blackman v. City of Hot Springs, 17 S.D. 378...