clusive not having been reversed or modified under proceedings taken for that purpose within two years after its entry and the filing of the judgment roll, there being nothing on the face of the judgment indicating that there was any want of jurisdiction in the proceedings of the court.

It appears from the record in this case that the defendant was fully advised of the entry of this judgment as early as October, 1902, but took no steps whatever to secure a new trial, or appeal the case to the Supreme Court. It is claimed by the appellant that she received no notice that the trial would be had in August, 1902; but it is recited by the court in its judgment that due notice was served upon her, and we think this recital is fully sustained by the evidence, and that she had an opportunity if she so desired to appear at the trial and object to the proceedings, but not having appeared there in person or by attorney, this court, in support of the judgment, may presume that the case was tried and the judgment rendered with her consent. In many of the cases cited by appellant's counsel, in which a judgment rendered in vacation was held vold, it seems to have been generally admitted by the courts so holding, that if the judgment had been rendered by the consent of the parties, the judgment would not have been vold. We think the rule as laid down by Mr. Black, above quoted, that unless it affirmatively appears upon the face of the judgment that a court rendering the same had no jurisdiction to render it, the judg ment cannot be held void, and unless reversed or vacated within the time prescribed by law, it is conclusive. To hold that a judgment apparently valid upon its face, where the court has jurisdiction of the subjectmatter and the person, can be set aside and vacated as void after the time prescribed by the statute in which an appeal would be taken or motion made to vacate and set aside the same would be to establish a dangerous doctrine, and one that would weaken the faith of the community in the conclusiveness of judgments.

We are of the opinion, therefore, that the court was clearly right in denying appellant's motion and the order of the court denying the same is affirmed.

Α

HANEY, J. (concurring specially). special term may be held at any time without notice to the public. The trial of an issue of fact, arising upon a material allegation in a complaint controverted by the answer, is, in effect, the holding of a special term. Failure to file a formal order for such special term may be an irregularity, but cannot render the results of such a trial void. Notice of trial in this case was properly given by leaving it at defendant's residence, In another state, with a person of suitable age and discretion. Rev. Code Civ. Proc. § 553, subd. 2. This is so notwithstanding the

defendant might have been served in the manner provided by section 559. The latter is cumulative, not exclusive of the former, and a less reliable method of obtaining the object intended. For these reasons, I think, the judgment was not void, and that the order appealed from should be affirmed.

FULLER, P. J., dissenting.

ROY et al. v. HARNEY PEAK TIN MIN., MILL. & MFG. CO. et al.

(Supreme Court of South Dakota. Dec. 21, 1906.)

1. CONTRACTS-LEGALITY-PUBLIC POLICY. While one's agreement not to contest another's application for a patent to public land is valid, that being a matter affecting his own property, his agreement not to protest against the other's application is void, as against public policy.

2. SAME REMEDY FOR BREACH OF ILLEGAL AGREEMENT.

Where plaintiff conveyed land to defendant in execution of his contract to do so in consideration of defendant's agreement not to contest or protest against plaintiff's application for a patent to land, he may not have a remedy at law or have the deed canceled because of defendant's breach of his illegal agreement not to protest the application, there being no allegation of fraud in the procuring of the deed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 681, 6SS.] 3. CANCELLATION OF INSTRUMENTS-REMEDY FOR BREACH OF CONDITION SUBSEQUENT.

Where plaintiff agreed to, and in execution of his contract did, deed land to defendant, in consideration of defendant's agreement not to contest or protest against an application by plaintiff, plaintiff's remedy for defendant's agreement not to protest is by action for damages, and not for rescission of the deed, in the absence of a showing of fraud in procuring the contract, defendant's agreement, which he violated, being in effect a condition subsequent. [Ed. Note. For cases in point, see Cent. Dig. vol. 8, Cancellation of Instruments, § 14.]

Appeal from Pennington County Court. Action by William Roy and another against the Harney Peak Tin Mining, Milling & Manufacturing Company and others. From orders overruling demurrers, defendants appeal. Reversed.

Chauncey L. Wood, Edwin Van Cise, and Frank L. Grant, for appellants. Fred H. Whitfield, for respondents.

CORSON, J. This is an appeal from orders of the circuit court overruling defendants' demurrers to the complaint.

The plaintiffs in their complaint after setting forth the incorporation of the defendant, the Harney Peak Tin Mining, Milling & Manufacturing Company, the appointment of defendant Ledoux as receiver, the application of the plaintiffs to enter a 160-acre tract of land as a homestead near Keystone in Pennington county alleges as follows: That thereafter the defendant A. R. Ledoux, as receiver for the defendant corporation, by and through his local resident agent, one Frank

P. Williams, threatened to oppose said final entry and have said final receipt canceled, and prevent the plaintiffs from receiving a patent to said lands and homestead on behalf of the defendant corporation, and was about to file a protest or contest, after said final proof, for said purpose. Thereupon the plaintiffs and the defendant A. R. Ledoux, as such receiver, by and through his said local agent, Frank P. Williams, made and entered into a contract or agreement whereby it was mutually agreed that, if the said plaintiff would convey to the defendant A. R. Ledoux, as receiver, a certain five-acre strip of said homestead lands above mentioned, the defendants would withhold all opposition to said final entry and the issuance of patent, and would not contest, protest, or oppose in any manner the claim of plaintiffs to their said homestead lands or the issuance of patents therefor, and would put plaintiffs to no costs, expense, trouble, or annoyance in regard thereto. That, pursuant to said agreement and for no other consideration, the plaintiffs duly made, executed, acknowledged, and delivered to the said defendant A. R. Ledoux, receiver, their certain warranty deed, dated October 15, 1900, and thereby conveyed to the said defendant A. R. Ledoux, in fee, five acres of said homestead lands as therein described, be Ing the identical strip and portion of said land which was so mutually agreed should be conveyed. That the plaintiffs did and performed all the conditions and obligations of said agreement on their part to be kept and performed; and said defendant A. R. Ledoux, receiver, has, ever since said delivery of said deed, kept and retained the same. Defendants further allege that said Ledoux, in violation of said agreement, filed in behalf of the said corporation a protest against the plaintiffs' said entry of his said homestead and demanded the cancellation of the said entry; that thereupon a hearing was had and the said protest dismissed; that subsequently a second protest was filed, and, upon a hearing, the same was dismissed; that Ledoux filed and had recorded the said deed so executed and delivered to him by the plaintiffs; that the plaintiffs, by reason of the said protest, were put to great expense in procuring counsel and witnesses, and that the United States Circuit Court in which the action was pending, in which the said Ledoux was appointed receiver, authorized the plaintiffs to bring this action against the said receiver and the said corporation; that demand has been made upon said receiver for the cancellation and surrender of said deed which has been refused by the defendant and the plaintiffs, therefore, demand judgment against defendants for the cancellation and return of the deed

* and for the reconveyance and return to the plaintiffs of the said tract of land therein described and thereby conveyed, and for such other and further relief, etc. The demurrer of the defendant corporation was interposed upon the following grounds:

(1) The court has no jurisdiction of the subject of the action; and (2) that the complaint does not state facts sufficient to constitute a cause of action in favor of the plaintiffs, or either of them, against this defendant. The demurrer of the defendant Ledoux, as receiver, was upon the same grounds.

The learned counsel for the appellant have specified in their brief a large number of objections to the sufficiency of the complaint, but, in the view we take of the case, it will only be necessary to notice the third and sixth objections. The third objection is as follows: "Another objection to this complaint is it states a contract or consideration for this deed, both contrary to the policy of express law and contrary to good morals." It will be observed that it is alleged in the complaint that the defendants, in consideration of the execution of the deed set forth therein, agreed not to contest plaintiffs' application for a patent and not to file a protest against the same. While the defendants undoubtedly had the right to agree not to contest plaintiffs' application for a patent as that was a matter affecting defendants' own property, and they could lawfully contract not to contest plaintiffs' application for patent, the agreement not to protest against the plaintiffs' application was clearly against public policy and void. A protest in such a case is giving the Land Department information or supposed information that has come to the knowledge of the protestant that the applicant for a patent has concealed from the Land Department facts which he ought to have disclosed to them, is proceeding to make the entry upon false testimony or some other fact that would show to the Land Department that the applicant was not entitled to the patent. It is not competent, therefore, for a party having knowledge of such facts to enter into a contract or agreement that he will not present them to the Land Department, and, as before stated, such a contract is clearly against public policy and void. Damrell v. Meyer, 40 Cal. 166; Huston v. Walker, 47 Cal. 484; Snow v. Kimmer, 52 Cal. 624; Hoyt v. Macon, 2 Colo. 502; Oaks v. Heaton et al., 44 Iowa, 116; McCue v. Smith, 9 Minn. 252 (Gil. 237) 86 Am. Dec. 100; Evans v. Folsom, 5 Minn. 422 (Gil. 342) Mellison et al. v. Allen, 30 Kan. 382, 2 Pac. 97; Nichols v. Council, 51 Ark. 26, 9 S. W. 305, 14 Am. St. Rep. 20. It will be observed from the allegations of the complaint that the defendant Ledoux has performed the legal part of his agreement by omitting to file any contest against plaintiffs' application but has failed to perform the illegal part of the agreement which is against public policy. The plaintiffs, therefore, have no right to a cancellation of the deed executed for the consideration of that part of the agreement as they were parties to the illegal contract. Neither law nor equity will aid a party who has knowingly entered into a contract void as against public policy by canceling an executed deed in pur

suance of such contract and restoring to him the property which he has voluntarily parted with in the execution of such a contract except in certain classes of cases not necessary to be noticed in this opinion. It will be noticed that this is an executed contract so far as the plaintiffs were concerned, they having executed and delivered to the defendant Ledoux the deed to the property in controversy. Clearly, therefore, the plaintiffs have no right of action against the defendants for the cancellation of the deed in controversy because of Ledoux's failure to carry out the terms of that part of the contract which was illegal and void, there being no allegations of fraud in procuring the deed on the part of the defendant Ledoux.

The sixth objection is as follows: "This is a case, in any event, by the allegations of the pleading, of a failure of a condition subsequent existing only in parol. In such a case, the right of action is not to cancel the deed, but for damages for a breach of the agreement." It appears from the complaint that the defendant complied with that portion of the contract on his part by which he agreed not to contest plaintiffs' entry, and that no contest was filed but that, subsequently to the entry, he did, in violation of his agreement, filed a protest in the Land Office against the plaintiffs' entry and that such protests filed by the defendant Ledoux in behalf of himself and the defendant corporation were dismissed in the Land Office. It will be seen that the plaintiffs are not entitled to a rescission of the contract for the reason that fraud in obtaining the contract is not alleged, and that the defendants cannot be placed in the same situation that they were before the time for final entry had expired as they could not initiate any contest after the expiration of the time limited against the plaintiffs' entry. It further appears from the complaint that the agreement of the defendants was, in effect, a condition subsequent, and the violation of such an agreement does not ordinarily confer upon a party a right to a rescission of an executed contract where there has been no fraud or misrepresentations in obtaining the contract, but the party must re ly upon his action to recover the consideration or damages for the breach of the agree ment. The only cases, so far as our researches extend, in which it is held that an executed conveyance may be canceled for the failure to comply with the subsequent condition or agreement, and where there was no fraud or misrepresentation in procuring it, is where it is so specified in the deed. In discussing this last objection we have assumed, for the purposes of the discussion, that the agreement of the defendants not to protest the application of the plaintiffs was a valid and binding agreement, but, as before stated, that part of the agreement not performed by the defendant was clearly illegal and void, and could afford no grounds for plaintiffs' action. In our view of the case,

therefore, the plaintiffs are not entitled to the relief prayed for in their complaint.

We are clearly of the opinion that the demurrers should have been sustained, and the orders overruling the same are reversed.

BOETTCHER v. THOMPSON et ux. (Supreme Court of South Dakota. Dec. 19, 1906.)

1. APPEAL-RECORD-BILL OF EXCEPTIONS

STATEMENT.

Where there is a notice of intention to move for a new trial on a bill of exceptions to be thereafter filed, followed by service of the proposed exceptions, that portion of the record is a statement of the case rather than a bill of exceptions.

2. SAME-AUTHENTICATION-CERTIFICATION. The Supreme Court takes the record on appeal, as made and certified by the trial court, as a verity.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2850.]

3. SAME-RECORD-QUESTIONS PRESENTED FOR REVIEW-SUFFICIENCY OF EVIDENCE.

Sufficiency of the evidence to sustain a decision will not be reviewed, when the statement of the case did not contain proper specifications of the particulars wherein such evidence was alleged to be insufficient.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2910.] 4. SAME-PRESUMPTIONS.

As a trial court is not bound to review the sufficiency of the evidence on a motion for a new trial made on a statement of the case not specifying the particulars in which the evidence was insufficient, it will be presumed, on appeal from an order overruling the motion, that he did disregard it.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3772-3776.]

On motion for rehearing. Former declsion adhered to.

For former opinion, see 95 N. W. 874, 17 S. D. 177.

HANEY, J. The judgment of the circuit court in this action was affirmed by a former decision, for the reason that the only material alleged errors discussed in appellant's brief related to the sufficiency of the evidence, and its sufficiency could not be reviewed, as the appeal was from the judgment and an order made after judgment denying the plaintiff's application for a new trial; such motion having been made on a bill of exceptions or a statement of the case which contained no specifications of the particulars wherein the evidence was alleged to be insufficient. Boettcher v. Thompson, 17 S. D. 177, 95 N. W. 874. A rehearing having been granted, the original record, to which attention was directed by an additional abstract, has been re-examined to ascertain whether any error was made as to what such record in fact disclosed; there being no doubt as to the correctness of the legal conclusions announced in our former decislon.

The portion of the record in controversy

should be termed a statement of the case. Juckett v. Fargo Mer. Co., 18 S. D. 347, 100 N. W. 742. It is expressly stated therein that judgment was rendered in favor of the defendant and against the plaintiff on January 23, 1901. That judgment was entered on January 29, 1901. And "that thereafter, and within the time as allowed and extended by the court, the plaintiff made and served upon the defendants' attorneys his intention to move for a new trial, specifying therein the following statutory grounds for said motion: (1) Insufficiency of the evidence to justify the findings and decision of the court, and that said findings and decision are against the law; (2) that the findings are insufficient to support the judgment; (3) error at law occurring at the trial excepted to by said plaintiff-and specifying therein that said motion for a new trial would be made upon a bill of exceptions to be thereafter settled and upon all the records and files in said cause." It is therefore conclusively established that the motion for a new trial was made on a bill of exceptions, or, more accurately speaking, on a statement of the case. "The rule is too familiar to discuss that this court takes the record as it is made and certified by the trial court as a verity." Wright v. Sherman, 3 S. D. 367, 53 N. W. 425. Even though the recitals in a judgment are presumptively true, an affirmative showing in the bill of exceptions that they are not true must prevail over the presumption. Schlachter v. Church (S. D.) 105 N. W. 279. Then, under the rule prescribed by the statute, and followed by this court in numerous decisions, the sufficiency of the evidence to sustain the decision in this action could not be reviewed, if the statement of the case did not contain proper specifications of the particulars wherein such evidence was alleged to be insufficient. Rev. Code Civ. Proc. § 303, subd. 3; Pierce v. Manning, 2 S. D. 517, 51 N. W. 332; Chandler v. Kennedy, 8 S. D. 56, 65 N. W. 439; Nelson v. Jordeth, 15 S. D. 46, 87 N. W. 140; Johnston L. M. Co. v. Case, 13 S. D. 28, 82 N. W. 90; Wenke v. Hall, 17 S. D. 305, 96 N. W. 103; Clark v. Mitchell, 17 S. D. 431, 97 N. W. 358.

The statement contains nothing with reference to the matter under discussion, except the following: "Specification of Errors. The following is a specification of the particular errors on which plaintiff will rely on his motion for a new trial herein: (1) The court erred in permitting the defendants to amend their answer over plaintiff's objection for the reasons stated in the objection. (2) The court erred in admitting in evidence Exhibits 1, 2, 3, and 4, over the objection of plaintiff, for the reasons stated in said objection. (3) The court erred in admitting In evidence Exhibits 5 to 17, inclusive, over plaintiff's objection, for the reasons stated In said objections. (4) The court erred in

finding and holding that there was any valid and legal assessment of the lands in controversy for the years 1890, 1891, and 1893, being the years upon which the tax deeds were based, and in finding and holding that said lands had been legally and duly assessed and returned for taxation in either of said years. (5) The court erred in finding and holding that the lands in controversy were duly and legally listed for taxation in the years 1890, 1891, and 1893, or that a proper description of same was contained in the tax list or duplicate tax list for either of said years. (6) The court erred in finding and holding that the said lands were legally sold in 1892 for the taxes legally due and delinquent thereon for the years 1890 and 1891. (7) The court erred in finding and holding that said lands were legally sold in 1894 for the taxes legally due and delinquent thereon for the year 1893. (8) The court erred in finding and holding that Exhibit 19 was a legal report of sale for taxes, and in admitting same in evidence over the objec tion of plaintiff. (9) The court erred in finding and holding that Exhibit E was a legal notice of tax sale. (10) The court erred in finding and holding that the tax deeds of defendants were legal and valid, and that they were duly and legally issued. (11) The court erred in finding that plaintiff did not pay or tender and offer to pay defendants all taxes legally due upon said lands prior to the commencement of this action. (12) The court erred in finding and holding that plaintiff did not make out a prima facie case. (13) The court erred in making and filing findings of fact in favor of defendants and against plaintiff. (14) The court erred in making and filing conclusions of law in favor of defendants and against plaintiff. (15) The court erred in rendering judgment in said action in favor of the defendants and against the plaintiff, for the reason that the findings are insufficient to support the judgment and the evidence insufficient to support the findings. (16) The court erred in finding as a matter of fact that the defendant had paid the taxes upon the land in controversy for ten successive years, for the reason that the evidence shows that the defendant had not so paid the taxes on said land, but that defendant had purchased certificates of tax sale and was holding the same against said land.”

Only in the last paragraph is there any specification of any particular in which the evidence is alleged to be insufficient to sustain the findings of fact made by the trial court, and, as was sald in our former decision, the limitation issue was immaterial if defendants' tax title was valid. All the other paragraphs relate to errors of law occurring at the trial, or are merely allegations that the court erred in its conclusions. With the exception noted, the specifications, which purport to be nothing more than

specifications of errors at law, nowhere point out any particular portion of the evidence or any particular fact which is alleged to have. been proved or disproved. If the evidence established any facts which rendered the defendants' tax title invalid, such evidence or facts should have been called to the attention of the trial court and to the attention of this court, so that it might be readily determined whether any material finding of fact was not supported by the evidence. This not having been done, the court was at liberty to disregard the statement so far as it related to the sufficiency of the evidence, and the legal presumption is that he did so disregard it.

It follows that the views announced in our former decision must be adhered to, and the Judgment of the circuit court affirmed.

CORSON, J., not sitting.

GARDNER v. WELCH et al. (Supreme Court of South Dakota. Dec. 19, 1906.)

1. EVIDENCE PAROL EVIDENCE AFFECTING WRITINGS.

Rev. Civ. Code, § 1239, provides that the execution of a contract in writing supersedes all oral negotiations as to matters which preceded or accompanied the execution of the instrument. Negotiations between plaintiff and defendant resulted in plaintiff turning over to defendant a stock of goods, and defendant causing certain land to be conveyed to plaintiff's son, subject to a mortgage, which under the deed the grantee assumed, and defendant and plaintiff executed a written agreement which recited that defendant assumed control of the land, that he agreed to pay interest on the mortgage on the land, and guarantied plaintiff a certain sum, within 5 years, plaintiff to pay taxes and furnish a deed when requested by defendant on payment of the sum mentioned, defendant to be entitled to any excess over such sum and the mortgage. Defendant failed to pay interest, and the mortgage was foreclosed, and plaintiff sued to recover the sum in question. Held that, under the written contract, plaintiff owned the land, and defendant warranted a sale for the sum in question, and it was proper to exclude parol evidence of conversations tending to show that the land was conveyed to plaintiff's son as security.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 1778.]

2. DAMAGES-BREACH OF CONTRACT-FAILURE TO PERFORM.

Plaintiff, having had actual knowledge that defendant was not paying the interest as agreed, and having neglected to pay the interest himself, was only entitled to recover the sums of interest which defendant neglected to pay, with interest on such sums at the legal rate, when each should have been paid, and could not recover on the guaranty.

Appeal from Circuit Court, Douglas County.

Action by M. D. Gardner against Irving R. Welch and another, doing business under the name of the Charles Mix County Land Company. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

W. E. Tipton, C. H. Dillon, for appellant. French & Orvis, for respondents.

HANEY, J. The allegations of the complaint are in substance as follows: That defendants were and are partners, doing business under the firm name of the "Charles Mix County Land Company." That plaintiff was the owner of certain merchandise of the value of $1,100. That defendants were the owners of a certain quarter section of land, title to which was in one A. H. Pease. for their own use and benefit, upon which there was a mortgage for $600, falling due May 4, 1899, with interest payable annually. "That on the 10th day of May, 1894, the defendants purchased of the plaintiff the said stock of merchandise, and the plaintiff sold and delivered said merchandise to the defendants at the agreed price of $1,100, to be paid on or before five years from date of sale at 8 per cent. interest. That the defendants, for and in consideration of receiving said $1,100 stock of merchandise so delivered to them, then and there agreed to guaranty to the plaintiff by their written guaranty the payment of the said $1,100, with 8 per cent. interest, on or before five years from said date and to cause to be deeded to Asa Gardner, plaintiff's son, said real estate, which was then and there to be held by said Asa Gardner for the protection of plaintiff and defendants, and as security for the payment to plaintiff of said $1,100, with interest thereon, and the plaintiff and defendants, in order to carry out said agreement and understanding, did then and there, make, execute, and deliver their certain written contract in the words and figures following, viz.: 'It is this day agreed between the Charles Mix County Land Co. of Edgerton, South Dakota, and M. D. Gardner, of Bon Homme, Bon Homme County, South Dakota, as follows: The Charles Mix County Land Co. this day takes charge of and assumes control of the S. E. 14, Sec. 23, Twp. 100, R. 67, title of which is in Asa Gardner, and agrees to pay interest as it matures on present loan of $600, now on land, and guarantees Gardner $1,100 principal and eight per cent. interest within five years from this date, the said company to have all rentals and full use of said land, Gardner is to pay taxes as they become due, and to furnish good deed at any time requested by said company, on payment of the $1,100 and interest aforesaid with matured interest from this date to date of tender. The said Land Co. is to have any excess received from said land above the $600 encumbrance and $1,100 with interest at eight per cent. This agree ment may be canceled at any time, by mutual consent but is not transferable. Gardner has privilege of disposing of land himself at any time on payment of a reasonable sum for this guaranty. Dated at Bon Homme, So. Dak., this 10th day of May,