SWENSON V. CHRISTOFERSON.

[10 SOUTH DAKOTA, 188.]

EXECUTION-PROCEEDINGS AGAINST A SHERIFF FOR NOT MAKING A RETURN-DEFENSE TO.-Under a statute providing that if any sheriff shall refuse or neglect to execute any writ of execution, or to return any writ to the proper court on or before the return day, he shall, on motion, be amerced in the sum of the debt, damages, and costs, with ten per cent thereon to and for the use of the plaintiff, an officer failing to return a writ may relieve himself from liability by proving that the judgment debtor had no property subject to execution during the life of the writ.

C. A. Christoferson, for the appellant.

O. S. Gifford, for the respondent.

189 HANEY, J. This proceeding was instituted for the purpose of amercing the sheriff for failing to sell personal property under an execution, and failing to return an execution within the time required by law. On July 24, 1895, an execution on a judgment duly entered and docketed in Minnehaha county, and also docketed in Lincoln county, was issued to the 190 sheriff of the latter county, who levied upon certain personal property belonging to the judgment debtor in such county. Within the time prescribed by the statute, the debtor made a schedule of all his personal property, subscribed and sworn to by himself, and delivered the same to the sheriff, whereon the latter made the following indorsement, returning the schedule to the debtor, and retaining a copy thereof: "Due and personal service by copy admitted, this twenty-sixth day of July, 1895. [Signed] T. W. Smelker, sheriff in and for Lincoln county, South Dakota." The attorney of the judgment creditor was immediately notified of the debtor's claim of exemptions, and an indemnifying bond was demanded by the sheriff. None was given, and the sheriff was directed by such attorney to proceed and sell the property notwithstanding such claim, on the ground that the claim of exemptions was ineffectual, for the reason that a copy of and not the original schedule had been given to the sheriff. On or about January 8, 1896, and before this proceeding was instituted, the execution was returned to the clerk of the court in Minnehaha county, wholly unsatisfied. The judgment debtor did not possess any personal property not included in such schedule, nor any real property liable to execution, when the execution was issued, nor has he since that time had any property beyond the amount of his exemptions. The circuit court

refused to amerce the sheriff and the judgment creditor appealed.

We think there was a substantial, if not strict, compliance with the statute in making the claim for exemptions (Comp. Laws, sec. 5130); and the only question requiring attention is whether the sheriff should be amerced for failing to return the execution within the time required by law. "If any sheriff or other officer shall refuse or neglect to execute any writ of execution to him directed, which has come into his hands, or to sell any personal or real property, or to return any writ of execution to the proper court on or before the return day such sheriff or other officer shall, on motion in court and two 191 days' notice thereof in writing, be amerced in the amount of said debt, damages and costs, with ten per cent thereon to and for the use of the plaintiff": Comp. Laws, sec. 5167. The supreme court of Nebraska, in construing a statute containing the same provisions, uses the following language: "The only new liability sought to be created by the above statute is the penalty of ten per cent. Without the statute, the sheriff would be equally liable for all but the penalty. With it, he is only liable for actual damages, possibly with the penalty added. The statute gives a short, cheap, and expeditious remedy, but it only lies where an action in the nature of trespass on the case would lie." And the court concludes that, where the judgment debtor had no property liable to execution during the life of the writ, the plaintiff could not be damaged by the sheriff's failure to return the writ in time: Crooker v. Melick, 18 Neb. 227. Such is the case at bar. The debtor properly claimed his exemptions. There was no property out of which the sheriff could collect the plaintiff's claim, and the sheriff should not have been amerced.

The order appealed from is affirmed.

EXECUTION-FAILURE TO MAKE RETURN-LIABILITY OF OFFICER.-In the United States, many statutes have been enacted for the purpose of giving ample, and in most cases summary and punitive, redress against officers neglecting or refusing to return final process, but, independent of these statutory provisions, the right of a plaintiff to maintain an action against an officer and his sureties for a failure to make a return has been generally conceded. In some of the states, the amount of an officer's liability for such dereliction of duty is fixed by statute, and these provisions are collected in the monographic note to Sloan v. Case, 25 Am. Dec. 571574. Nonreturn of an execution until after the return day does not per se make the sheriff liable in an action: Commonwealth v. Magee, 8 Pa. St. 240; 49 Am. Dec. 509. The officer may avoid liability by proving a reasonable excuse for his failure to make the return: Smith v. Perry, 18 Tex. 510; 70 Am. Dec. 295. Compare

State v. Buckles, 8 Ind. App. 282; 52 Am. St. Rep. 476; Hawkins v. Taylor, 56 Ark. 45; 35 Am. St. Rep. 82.

ACME MERCANTILE AGENCY v. ROCHFORD,

[10 SOUTH DAKOTA, 203.]

FOREIGN CORPORATIONS-PLEADINGS.-Though a foreign corporation is prohibited from maintaining an action unless it complies with provisions of the statutes of the state, it need not allege such compliance in its complaint. In the absence of any showing to the contrary, it will be presumed to have complied, and, if it has not, the defendant must plead that fact in his answer.

Aikens, Bailey & Voorhees, for the appellant.

Joe Kirby, for the respondent.

204 HANEY, J. This action is by a foreign corporation on two promissory notes executed and payable in this state. It is alleged in the complaint "that at all times hereinafter mentioned this plaintiff has been, and now is, a corporation duly organized and existing according to the laws of Iowa." Defendant demurred upon the following grounds: "That the facts stated in the complaint are not sufficient to constitute a cause of action, and especially in that it appears from the complaint that the plaintiff is a foreign corporation, and that the notes set forth in the complaint were executed and made payable in this state, and it does not appear from the complaint that the plaintiff has in any manner complied with the provisions of chapter 47 of the Laws of 1895, being an act entitled 'An act to amend sections 567 and 569 of the Civil Code, being sections 3190 and 3192 of the Compiled Laws of 1887, relative to the duties of foreign corporations, and to provide penalties for the violation of the provisions of this act'; approved and taking effect March 14, 1895." The demurrer was overruled, and defendant appealed. Under the statute mentioned in the demurrer an action cannot be maintained by a foreign corporation without complying therewith, and, when its failure to have done so affirmatively appears, the action should be dismissed: Bradley v. Armstrong, 9 S. Dak. 268. But plaintiff's failure to comply with the statute does not appear upon the face of the complaint. Whether it had or had not done so prior to the commencement of this action is left to be presumed. Its existence is alleged, and the fact that it did business in this state appears. Persons doing business in this state must be presumed to know its laws. All persons are presumed to

comply with the laws of the state wherein they happen to be, or where they transact business. In the absence of any showing to the contrary, it seems to us we may fairly presume that the plaintiff had complied with the requirements of the statute before this action was begun: Comp. Laws, sec. 4909; Cassaday v. American Ins. Co., 72 Ind. 95. The plaintiff's failure to comply 205 with the statute not appearing upon the face of the complaint, the objection should have been taken by answer: Comp. Laws, sec. 4912.

The order of the circuit court is affirmed.

Corson, P. J., dissents.

CORPORATIONS-FOREIGN-POWER

TO SUE AND BE SUED-PLEADING.-A foreign corporation is not required to aver that it is a legally incorporated company: Bennington Iron Co. v. Rutherford, 3 Harr. 105; 35 Am. Dec. 528; Lewis v. Bank of Kentucky, 12 Ohio, 132; 40 Am. Dec. 469. But its existence as a foreign corporation, when put in issue, must be proved like any other fact: Savage Mfg. Co. v. Armstrong, 17 Me. 34; 35 Am. Dec. 227.

PARRISH V. MAHANY.

[10 SOUTH DAKOTA, 276.]

APPELLATE PRACTICE.-If a motion for a new trial is made, and the order denying it is not appealed from, the sufficiency of the evidence to sustain the findings cannot be reviewed on an appeal from the judgment.

DEED-WHEN DEEMED RECORDED,-Under a statute making an instrument operative as a record from the time it is filed for record, the grantee should be deemed to have discharged his duty when he has delivered the instrument properly executed and acknowledged to the recording officer, and is entitled to the same protection as if the instrument were at that moment properly recorded, and no subsequent mistake can deprive him of its operation as a recorded instrument.

THE FILING OF A DEED FOR RECORD IS not annulled by its subsequent unauthorized withdrawal before it is actually recorded.

DEED-RECORDING-FAILURE TO PAY FEES FOR IN ADVANCE.-If a county recorder is not required to demand his fees in advance, and he receives and files for record a deed without demanding such fees, it must be treated, so far as validity of the record is concerned, as if such fees had been paid.

NOTICE-PURCHASER WHERE THE SAME GRANTOR HAS MADE TWO CONVEYANCES AT DIFFERENT PERIODS, BOTH OF WHICH ARE OF RECORD.-A purchaser is bound to examine the records to discover whether the grantor therein had made any conveyance prior in point of time, but junior in record to that under which he claims.

NOTICE. WHERE THE SAME GRANTOR HAS MADE TWO CONVEYANCES of the same property, both of which are recorded, but the one last made was first recorded, a purchaser

from the grantee in the deed junior in point of execution, but prior in recordation, is chargeable with notice of both conveyances, and must inquire whether he whose conveyance was first recorded was a purchaser in good faith and for a valuable consideration.

PURCHASER-PRESUMPTION OF GOOD FAITH.-Where two conveyances have been made of the same property by the same grantor, and the one last executed was first recorded, it will be presumed that the grantee therein purchased in good faith, for valuable consideration, and without notice of the prior unrecorded conveyance.

Gamble & Dillon, for the appellants.

Robert B. Tripp, for the respondents.

278 HANEY, J. This action is to foreclose a real estate mortgage executed by the defendants Mahany and wife. Defendant Anna Wright claims to own the realty under a conveyance executed and recorded prior to the execution and recording of plaintiff's mortgage, and that the mortgage was executed while she was in the sole, exclusive, and notorious possession and occupation of the premises. The action was tried by a referee, whose decision was accepted by the court, and judgment rendered in favor of defendant Anna Wright. A motion for a new trial having been denied, plaintiffs appeal from the judgment.

The motion for a new trial having been made after judg ment, and not having been appealed from, the insufficiency of the evidence to justify the referee's findings of fact cannot be reviewed, and the only question demanding attention is whether such findings sustain the judgment: Gade v. Collins, 8 S. Dak. 322; Bourne v. Johnson, 10 S. Dak. 36; Aultman v. Becker, 10 S. Dak. 58; Hawkins v. Hubbard, 2 S. Dak. 631; Barnard etc. Mfg. Co. v. Galloway, 5 S. Dak. 205.

The referee finds: That the plaintiffs' mortgage was executed April 15, and recorded April 19, 1887. That on the last-mentioned date defendant Amos E. Mahany submitted to the 279 agents of the mortgagees an abstract of said premises, showing transfers and liens of record, as affecting the title to said premises, which abstract was duly certified to by the said register of deeds on said abstract, and also by the clerk of said court and by the county treasurer of said county, and that said abstract was submitted, and showed of record a final receiver's receipt to William C. Reeves, recorded July 18, 1881; a warranty deed from said William C. Reeves and wife to M. T. Reeves, dated December 4, 1882, acknowledged December 4, 1882, and recorded December 30, 1882; a warranty deed from Ma