Wood v. Conrad

• Decision Date: 15 January 1892
• Citation: 2 S.D. 405,50 N.W. 903
• Parties: CHAUNCEY L. WOOD, Plaintiff/Respondent, v. SIMON P. CONRAD, Defendant/Appellant.
• Court: South Dakota Supreme Court

2 S.D. 405

50 N.W. 903

CHAUNCEY L. WOOD, Plaintiff/Respondent,

v.

SIMON P. CONRAD, Defendant/Appellant. South Dakota Supreme Court Appeal from Circuit Court, Pennington County, SD Hon. Charles M. Thomas, Judge Affirmed A. E. Wallace, C. L. Lewis Attorneys for appellant. Chauncey L. Wood, C. J. Buell, S. J. Parsons, Rapid City, SD Attorneys for respondent. Opinion filed Jan 15, 1892 (See 2 SD 334, 50 NW 95)

BENNETT, J.

The facts and controversy of this case are fully stated in the case of Wood v. Conrad, 50 NW 95. On the trial in the court below, neither the plaintiff nor the defendant was satisfied with the judgment of the court, and each appeals, making separate and different assignments of errors. The decision in the above case was based upon the errors assigned by the plaintiff; this one will be founded upon the alleged errors occurring at the trial, affecting defendant’s rights.

The abstract shows that the referee, against the objections of defendant, admitted, as evidence of plaintiff’s title, a sheriff’s deed to the property in controversy, dated April 6, 1888, which had been duly recorded. The objection to its introduction was for the reason that it recites a sale of real property which had been previously sold by the sheriff by virtue of an execution issued against the same defendant, and for the further reason that, at the time of the execution of said deed, the execution debtors had no interest or ownership in the property. The referee overruled this objection, and admitted the deed, and this action of the referee is assigned as error by the defendant. The facts in relation to this deed are that a judgment was obtained against the firm of Cyr & Volin, in favor of Jacob S. Gantz. Upon this judgment an execution was issued, and levied on lots 5 and 6,—the property in controversy, as belonging to John E. Cyr, of the firm of Cyr & Volin, which on the day of sale was sold to Wood, the plaintiff in this action.

No redemption having been made as required by law, the sheriff executed and delivered his deed for the lots to the plaintiff. It is under this deed that plaintiff claims title and the right of possession.

The purpose and object of this action is to try the legal title and right of possession to the lots in question, and, unless the respective titles of each party are before the court, there would be nothing to try or determine. The common law action of ejectment does not exist under our Code; therefore the rules which govern under that procedure are not applicable, but a person claiming an estate or interest in real property which is held adversely to him by one in possession can bring an action to determine the nature of their respective claims, (see Chapter 25, Code Civil Proc.,) and on the trial of such an action, all evidences of title which either party may have can be produced, for it is only by their introduction that the validity and legality of any one of them can be determined. The admission of the sheriff’s deed as evidence was not erroneous, but as to whether it was an evidence of title which was paramount to that of the defendant depends entirely upon the facts as shown by the abstract. The legality and validity of the deed from the sheriff to the plaintiff is not questioned by the defendant, except upon the ground that the property mentioned in it, which is the property in controversy, had been previously sold by the sheriff on another execution against the same defendant, and that, at the time of the sale under that execution, and for which the sheriff’s deed under which plaintiff claims title was made, the execution debtors had no interest or ownership in the property. To determine this, recourse must be had to the facts. Hall, the grantor of Conrad, the defendant, obtained whatever title he had to the property by virtue of a sale made under an execution issued against the same firm of Cyr & Volin, on the 18th day of May, 1888, which was levied on lots 4 and 5, instead of lots 5 and 6. Neither Cyr nor Volin ever claimed to have nor had either of them any interest in lot 4, which was sold under that execution; therefore, so far as that lot was concerned, the sale passed no title to it; and, as to lot 6, there being no levy or sale upon it, Hall acquired no title to it by reason of the execution sale, and had none to convey to Conrad, the defendant, or any one else. But defendant contends that the levy of the sheriff on lot 4 was an error, and that it was the intention to make the levy on lots 5 and 6; and, in this proceeding, asks to be allowed to correct that alleged mistake of the sheriff by having the notice of sale, certificate of sale, and sheriff’s return reformed and corrected, so that each of them shall read “lots 5 and 6,” instead of “lots 4 and 5,” wherever these words occur. If the correction can be made in any proceeding, it certainly cannot be done in an action where the validity of the title to real property is being tried. The paper evidence of that title must be taken as it appears upon its face. The notice of sale, certificate of sale, and return of the sheriff must be taken and deemed evidence of the facts recited in it. Furthermore, no evidence is shown by the record that the sheriff actually made any mistake in his levy or sale. It is merely on the part of the defendant an allegation of a fact, without proof of it. So far as the record discloses, Hall had no title whatever to...