Parker v. Vinson

Citations

• 11 S.D. 381
• 77 N.W. 1023
• 1899 S.D. LEXIS 3

Syllabus

<p>1. Under Comp. Laws, § 5455, providing that, in an action for the recovery of real property, a defendant holding under color of title,,in good faith, adversely to plaintiff, may recover his improvements, a defendant holding- in good faith under a void tax deed is entitled to recover Ms improvements. since such a deed constitutes color of title.</p> <p>2. Laws 1868-69, Chap. 16, §6, giving to parties holding adversely to the owner of land a right to recover'for improvements made in .good faith under color of title, mentions a tax deed as giving such color of title; and Rev. Codes 1877. p. 584, § 641, omits such provision. Held, a tax deed may still constitute color of title, as it may be presumed that by the omission it was not intended to make any distinction between tax deeds and other conveyances.</p> <p>8. A counterclaim, in an action for possession of land, alleging facts showing an ad verse^ claim under color of title and in good faith, and stating the nature of the improvements and the payment of taxes, is sufficient, as against a, general demurrer.</p> <p>4. In the absence of the evidence, the appellate court will presume that the court below bad legal evidence on which to base its findings.</p> <p>5. Where, in a counterclaim'for improvements, defendant sets up the value of the improvements, plaintiff’s denial of his allegations puts in issue the value of the improvements, and the court may find their value.</p> <p>6. The finding of the jury as to the value of permanent improvements •is conclusive as to whether the improvements were permanent, since what constitutes permanent improvements is a question of fact.</p> <p>7. An amendment of a judgment after appeal which does not materially chang-e the original judgment is not reversible error.</p> <p>Fuller, J., dissenting.</p>