Pendo v. Beakey

Citations

• 15 S.D. 344
• 89 N.W. 655
• 1902 S.D. LEXIS 14

Syllabus

<p>1. A notice for a new trial stated that the motion would be made on a bill of exceptions thereafter to be settled, and it appears that the motion was so made, and was heard and decided on the same day the bill was settled. Held, that it would be presumed that the bill was settled before the hearing and decision of the motion, and hence an objection that the questions presented by the bill cannot be considered, made on the ground that the notice did not specify the errors of law relied on, cannot be sustained; there being no contention that the errors relied on were not fully set out in the bill.</p> <p>2. If an action for possession of a town lot in the actual adverse possession of defendant is based on the alleged prior possession of plaintiffs, they can recover only by showing that the premises were inclosed by a good, substantial fence and kept in good repair to the time of defendant’s entry, or by showing actual residence on or occupancy of the premises by themselveé or tenants, with the boundaries of the premises well defined, continued to such time.</p> <p>3. In an action for possession of land, a recorded notice of plaintiffs’ alleged location, in -which they state a claim to the land, was inadmissible; there being no law authorizing such notice and record, and only a local custom to record such notices being shown.</p> <p>Í. Comp. Laws, § 5455, provides that in an action to recover realty on which permanent improvements have been made by defendant, or those under whom he claims, holding under color of title adversely to the claim of plaintiff, in good faith, their value must be allowed as a counterclaim by him. Held, that actual possession under t>ona fide claim of title by defendant was such a color of title as entitled him to recover thereunder, and that he nfeed not show a paper title to bring himself within its provisions.</p>