This is an action to quiet title to certain
lots in the incorporated town of Sisseton. The complaint is in the usual form. The defendant, Nelson Wilcox, who was the only defendant served and appearing in the action, denied the allegations of the plaintiff’s complaint, and alleged in his answer that the Reservation Land Improvement Company was in
: The plaintiff claimed title under a deed from the Reservation Land Improvement Company, which claimed title to the same under a patent from the government of the United States to the president of the board of town trustees in trust for the use and benefit of the occupants of the town. It is contended by the appellant that the court erred in admitting in-evidence^ over defendant’s objections, plaintiff’s Exhibit C — being-the deed from Herbert L. Green, president of the board of trustees qf the town of Sisseton, to the Reservation Land Improvement Company, through which plaintiff claims title.to the:land-in controversy — for the reason that there was no evidence that the corporate authorities of said town had either joined in. or authorized the execution of said deed. This objection was clearly untenable, for the reason that the patent introduced in evh dence, after the usual recitals, exants the property to the president of the board of trustees in trust for the use and benefit of the occupants, and to his successors, and' not to the incorporated town or its board of trustees. It will thus be seen that the legal title to the property vested in Herbert L. Green in trust for the occupants, and that he was the proper and only party authorized to execute the deed to such occupants. ■ The Reservation Land Improvement Company claimed to be such
It is further contended by the appellant that the description of the property in the ' plaintiff’s corhplaint is. not sufficiently definite and certain to- enable • her - to ■ -quiet'title-to the same; but this question, so far as the abstract discloses, was not raised in the court below, either on the trial, or the motion for a new trial, and hence- cannot be raised -for the’ first time in this court. Parrish et al. v. Mahany, 12 S. D. 278, 81 N. W. 295, 76 Am. St. Rep. 604; Noyes v. Brace, 9 S. D. 603; 70 N. W. 846; Thresher Co. v. Schmidt, 9 S. D. 489, 70 N. W. 646.
lt is further contended by the appellant that the acknowledgment of the deed purporting to be executed by Herbert Li Green to the Reservation Land Improvement Com pany was- defective in that there is an omission of the notary to-certify that'' said Herbert L. Green was known to -him to' be such -trustee; but we are of the opinion that there is no merit in this contention, as the notary certifies that said Herbert L. -Green'-was known to him to be the person who is described-in-and-who -executed the annexed instrument, and in -the deed'- itself it recites “That I, Herbert L. Green, President of the Bo'ard of Trustees of the town of Sisseton, Roberts ■ county, as Trustee for the several occupants and claimants- of the said town, party of the first part, for and in consideration-,” 'etc. ;■ and the deed-id signed, “Herbert L. Green, President’ Board -of - Trustees hof
It is*further contended by the appellant that the deed from Green to the Reservation Land Improvement Company was also improperly admitted in evidence for the further reason that the said Reservation Land Improvement Company was not shown to be a corporation. This contention is also untenable, for the reason that a properly certified copy of the articles of incorporation of said company, was admitted in evidence, and from it it appears that such a company was incorporated, and complied with the laws of the state in reference thereto, had accepted its articles of incorporation, and had organized and transacted business thereunder.
It is contended, however, that the incorporation was for purposes not authorized by the statute, namely, “the ownership, purchase, sale, and improvement of lands, or the carry
The further contention by the appellant that the' articles of incorporation were insufficient for the reason that the affidavits as to the trust clause required by law were not as full and specific as the law requires, we think, is also .untenable. Chapter 154 of the Laws of 1890 (section 5) provides that it shall be the'duty of the'Secretary of State, on the application of persons for a corporate charter, to require two applicants therefor to make oath that such corporation is not being formed for the purpose of enabling several corporations to avoid the 'provisions of the act, and provides that “if such oath or affirmation is not satisfactory the Secretary is authorized to withhold such charter.” In the case at bar the affidavits were in fact made by two of the incorporators. The first — that made by Her-. • bertL. Green — was substantially in the form required by the
Finding no error in the record, the judgment of the circuit court and order denying a new trial are affirmed.