Corson, P. J.
This is an action brought under the provisions of Section 5-119, Comp. Laws, which reads as follows: ‘‘An action may be brought by any person against any other who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim.”
The plaintiffs allege in their complaint that they are the owner's and in exclusive possession of certain lots in the city of Sioux Falls, constituting the property generally known as the “Commercial House”; that the plaintiffs are the owners in fee, and have been for many years past, of the said premises; that the defendant unjustly claims an estate or interest in said property adverse to the said plaintiffs, and that the claim of said defendant is without any right whatever, and plaintiffs pray that the defendant may be required to set forth the nature of his claim, etc., and that all adverse claims of the defendant may be determined by a decree of this court; that it may be adjudged that the defendant has no estate or interest whatever in or to the said land and premises; and that it be decreed and adjudged that the title of plaintiffs is good and valid, and that the defendant be forever enjoined and debarred from asserting any claim whatever in or to the said land and premises adverse to the plaintiffs. The defendant in his answer, after denying certain allegations of the complaint, alleges, in substance, as follows: That on the 12th day of April, 1889, he secured a [193]*193judgment in the circuit court of Minnehaha county against one Mary E. Wyman for the sum of $347.29, which judgment was duly docketed in the office of the clerk of said court. He further alleges that in December; 1888, one David F. Wyman, the husband of Mary E. Wyman, aforesaid, died intestate, and that at the lime of his death said Mary E. Wyman became possessed of one-third interest in and to all the real estate theretofore owned by said Wyman, and that said judgment of the defendant aforesaid against the said Mary E. Wyman thenceforth became a lien upon her one-third interest in and to all the said property; that among the real estate possessed by the said David P. Wyman at the time of his death was the property described in the complaint; that in May, 1897, an execution was duly issued, and the said one-third interest of the said Mary E. Wyman in the said property was sold by the sheriff of the said county thereunder, a nd bid in by the defendant for the sum of $553, and that the defendant received a sheriff’s certificate, which was duly filed for record on the 1st day of May, 1897, and duly recorded. A trial was had before the court without a jury, and it made findings of fact, and entered judgment in favor of the plaintiffs. A motion for a new trial was made and denied, and from the judgment and order denying a new trial the defendant appeals to this court.
It was admitted on the trial that on the 20th day of December, 1888, the said David P. Wyman was the owner in fee of the property in controversy. The plaintiff, to maintain his title to the property, introduced a certain deed, bearing date December 20, 1888, by which it appeared that David P. Wyman and Mary E. Wynan , his wife, as parties of the first part, conveyed to Thomas W. Tasker and Henry Westover all and [194]*194singular the real estate, and appurtenances and hereditaments thereunto belonging, of the said David F. Wyman, wheresoever the same might be situated, together with all right, title, or interest in any and all real estate, whether legal or equitable, and all chattels personal, rights, claims, choses in action, and ail securities for the same, of the said David F. Wyman, of which he was then possessed, or was entitled to be possessed, in trust, nevertheless, for the following uses and purposes, to-wit: “To be held, managed, controlled, transferred, sold, leased, or otherwise disposed of by the said trustees, in such manner as may be for the best interests for the family of David F. Wyman, and for the preservation of said property, and to be distributed to and between the family of said Wyman as soon as practicable after his death, in such manner and in such proportion as is prescribed by the laws of the territory of Dakota for the distribution of estates of intestates, first paying and discharging all legal demands and claims against the said David F. Wyman and the expenses of carrying out this trust; and said David F. Wyman hereby declares that his family, for whose use and benefit this trust is made, are as follows: Mary E. Wyman, his wife, and Frank E., Bert O., Fred K., Maútie A., and Henry B., his children. And it is hereby declared to be a condition of this trust that the same may be exercised conjointly by the said parties of the second part, or by any other such person in lieu of either one of them, as such one may se lect, by and with the assent of a majority of the cestuis que trustent. In witness whereof the said parties of the first part have hereunto set their hands and seals at the city of Sioux Falls, in the county of Minnehaha and territory of Dakota, this 20th day of December, 1888, This deed was acknowledged [195]*195on the 20th day of December, 1888, and duly recorded on the 11th day of January, 1889, in the office of the register of deeds of Minnehaha county. The plaintiffs and respondents deráigned title through that deed. At the close of the plaintiffs’ evidence the defendant moved the court for judgment for the reason that plaintiffs had not established facts sufficient to constitute a cause of action. This motion was overruled, and, as it was not renewed at the close of all the evidence, the error, if any, in overruling the motion, was waived. Haggarty v. Strong, 10 S. D. 585, 74 N. W. 1037; Colby v. McDermont (N. D.) 71 N. W. 772; Illstad v. Anderson, 2 N. D. 167, 49 N. W. 659.
The defendant and appellant then introduced "evidence tending to sustain the allegations of his answer. The appellant contends that the respondents showed no present, threatened, or probable injury which might result from defendant’s certificate of sale, and that the certificate of sale was void upon its face. We think there is no merit in this contention. The certificate of sale constituted an interest of appellant in the property adverse to the respondents. Clark v. Darlington, 7 S. D. 148, 63 N. W. 771. This action, as we understand it, was not brought under Sections 4644, 4645, Comp. Laws, and hence the provisions of those sections are not applicable. But, could the provisions of Section 4645 be made appplicable to actions like the one at bar, the contention of the appellant is not tenable, for the reason that the certificate of sale is not void upon its face. It being admitted that the title of the property in controversy was in David F. Wyman, the husband of Mary E. Wyman, and that ho died in December, 1888, the said Mary E. Wyman presumptively would be entitled to one-third of the property. To defeat such claim, it would be necessary to show [196]*196that the said David F. Wyman conveyed said property prior to his death, and, when such is the case, the invalidity of the instrument is not “apparent upon its face or upon the face of another instrument which is necessary to the use of the former in evidence” (Section 4645), as it would not be necessary for one claiming under Mrs. Wyman to introduce in evidence the trust deed from Wyman and wife to the trustees.
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Corson, P. J.
This is an action brought under the provisions of Section 5-119, Comp. Laws, which reads as follows: ‘‘An action may be brought by any person against any other who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim.”
The plaintiffs allege in their complaint that they are the owner's and in exclusive possession of certain lots in the city of Sioux Falls, constituting the property generally known as the “Commercial House”; that the plaintiffs are the owners in fee, and have been for many years past, of the said premises; that the defendant unjustly claims an estate or interest in said property adverse to the said plaintiffs, and that the claim of said defendant is without any right whatever, and plaintiffs pray that the defendant may be required to set forth the nature of his claim, etc., and that all adverse claims of the defendant may be determined by a decree of this court; that it may be adjudged that the defendant has no estate or interest whatever in or to the said land and premises; and that it be decreed and adjudged that the title of plaintiffs is good and valid, and that the defendant be forever enjoined and debarred from asserting any claim whatever in or to the said land and premises adverse to the plaintiffs. The defendant in his answer, after denying certain allegations of the complaint, alleges, in substance, as follows: That on the 12th day of April, 1889, he secured a [193]*193judgment in the circuit court of Minnehaha county against one Mary E. Wyman for the sum of $347.29, which judgment was duly docketed in the office of the clerk of said court. He further alleges that in December; 1888, one David F. Wyman, the husband of Mary E. Wyman, aforesaid, died intestate, and that at the lime of his death said Mary E. Wyman became possessed of one-third interest in and to all the real estate theretofore owned by said Wyman, and that said judgment of the defendant aforesaid against the said Mary E. Wyman thenceforth became a lien upon her one-third interest in and to all the said property; that among the real estate possessed by the said David P. Wyman at the time of his death was the property described in the complaint; that in May, 1897, an execution was duly issued, and the said one-third interest of the said Mary E. Wyman in the said property was sold by the sheriff of the said county thereunder, a nd bid in by the defendant for the sum of $553, and that the defendant received a sheriff’s certificate, which was duly filed for record on the 1st day of May, 1897, and duly recorded. A trial was had before the court without a jury, and it made findings of fact, and entered judgment in favor of the plaintiffs. A motion for a new trial was made and denied, and from the judgment and order denying a new trial the defendant appeals to this court.
It was admitted on the trial that on the 20th day of December, 1888, the said David P. Wyman was the owner in fee of the property in controversy. The plaintiff, to maintain his title to the property, introduced a certain deed, bearing date December 20, 1888, by which it appeared that David P. Wyman and Mary E. Wynan , his wife, as parties of the first part, conveyed to Thomas W. Tasker and Henry Westover all and [194]*194singular the real estate, and appurtenances and hereditaments thereunto belonging, of the said David F. Wyman, wheresoever the same might be situated, together with all right, title, or interest in any and all real estate, whether legal or equitable, and all chattels personal, rights, claims, choses in action, and ail securities for the same, of the said David F. Wyman, of which he was then possessed, or was entitled to be possessed, in trust, nevertheless, for the following uses and purposes, to-wit: “To be held, managed, controlled, transferred, sold, leased, or otherwise disposed of by the said trustees, in such manner as may be for the best interests for the family of David F. Wyman, and for the preservation of said property, and to be distributed to and between the family of said Wyman as soon as practicable after his death, in such manner and in such proportion as is prescribed by the laws of the territory of Dakota for the distribution of estates of intestates, first paying and discharging all legal demands and claims against the said David F. Wyman and the expenses of carrying out this trust; and said David F. Wyman hereby declares that his family, for whose use and benefit this trust is made, are as follows: Mary E. Wyman, his wife, and Frank E., Bert O., Fred K., Maútie A., and Henry B., his children. And it is hereby declared to be a condition of this trust that the same may be exercised conjointly by the said parties of the second part, or by any other such person in lieu of either one of them, as such one may se lect, by and with the assent of a majority of the cestuis que trustent. In witness whereof the said parties of the first part have hereunto set their hands and seals at the city of Sioux Falls, in the county of Minnehaha and territory of Dakota, this 20th day of December, 1888, This deed was acknowledged [195]*195on the 20th day of December, 1888, and duly recorded on the 11th day of January, 1889, in the office of the register of deeds of Minnehaha county. The plaintiffs and respondents deráigned title through that deed. At the close of the plaintiffs’ evidence the defendant moved the court for judgment for the reason that plaintiffs had not established facts sufficient to constitute a cause of action. This motion was overruled, and, as it was not renewed at the close of all the evidence, the error, if any, in overruling the motion, was waived. Haggarty v. Strong, 10 S. D. 585, 74 N. W. 1037; Colby v. McDermont (N. D.) 71 N. W. 772; Illstad v. Anderson, 2 N. D. 167, 49 N. W. 659.
The defendant and appellant then introduced "evidence tending to sustain the allegations of his answer. The appellant contends that the respondents showed no present, threatened, or probable injury which might result from defendant’s certificate of sale, and that the certificate of sale was void upon its face. We think there is no merit in this contention. The certificate of sale constituted an interest of appellant in the property adverse to the respondents. Clark v. Darlington, 7 S. D. 148, 63 N. W. 771. This action, as we understand it, was not brought under Sections 4644, 4645, Comp. Laws, and hence the provisions of those sections are not applicable. But, could the provisions of Section 4645 be made appplicable to actions like the one at bar, the contention of the appellant is not tenable, for the reason that the certificate of sale is not void upon its face. It being admitted that the title of the property in controversy was in David F. Wyman, the husband of Mary E. Wyman, and that ho died in December, 1888, the said Mary E. Wyman presumptively would be entitled to one-third of the property. To defeat such claim, it would be necessary to show [196]*196that the said David F. Wyman conveyed said property prior to his death, and, when such is the case, the invalidity of the instrument is not “apparent upon its face or upon the face of another instrument which is necessary to the use of the former in evidence” (Section 4645), as it would not be necessary for one claiming under Mrs. Wyman to introduce in evidence the trust deed from Wyman and wife to the trustees.
It is further contended that the deed from the trustees to Brace was void, for the reason that the deed was based upon a prior instrument, by which the trustees agreed to convey to Brace .in exchange for certain New York property owned by Brace; but we are of the opinion that, this contention is not tenable for two reasons: First, the deed to the trustees authorized the trustees to sell, transfer, or otherwise dispose of the said property in such manner as might be for the best interests for the family of David F. Wyman; secondly, the appellant herein is not in a position to question the validity of the deed from the trustees to Brace. If the deed from Wyman to the trustees was valid, then the appellant has no inte'rest'in the property. The validity of the deed from the trustees to Brace can only properly be questioned by the beneficiaries under the deed.
Appellant further contends that thedeed executed by David F. Wyman to the trustees, Tasker and Westover, was in legal effect a will, and could not take effect until the death of the said David F. Wyman. But we are of the opinion that the trust deed in this case comes within the provisions of Section 2798, Comp. Laws, authorizing the creation of express trusts for the purpose of selling real property, and applying or disposing of the proceeds in accordance with the instrument ere ating the trust, and is not in effect, a will. The effect of such [197]*197a deed is declared by Section 2804, Comp. Laws, as follows: ‘Except as hereinafter otherwise provided, every express trust in real property, valid as such, in its creation, vests the whole estate in the trustees,subject only to the execution of the trust. The beniñciaries take no estate or interest in the property, but may enforce the performance of the trust.” Our statute in reference to wills specifically defines the manner in which "wills shall be executed. The trust deed in this case was not ni accordance with any of the provisions relating to wills. By the authorities cited by appellant in support of his contention, it affirmatively appears from the instruments denominated “trust deeds,” and held by the courts in those cases to be wills,that llie trust deeds were not to take effect until the death of the g .-autor, and in some cases the so-called ‘‘trust deeds” were executed with the formalities of a will. There is no restriction in this deed as to the time when it shall take effect, and presumptively it would fake effect at once upon its delivery..
The title of the property being absolute in the trustees, Mrs. Wyman had no interest therein that could legally be sold on execution. All the interest she acquired in the property was the right to enforce the performance of the trust on the part of the trustees; that is, when the property should be sold and converted into money, and the debts of the said David F. Wyman paid, to have the money received for the property divided among the heirs, as directed in the said deed of trust While, therefore, the sale of the property under the judgment of the appellant would fend to cast a cloud upon the title of the respondents, it is nevertheless a claim without right, and should not be permitted to stand as against the title of the re[198]*198spondents. The conclusions of law, therefore, of the court, that the trust deed was and is a valid conveyance, and vested in said trustees aud their successors all the title and properly of the said David F. Wyman, with full power to sell and convey the same, and that the said Mary E. Wyman bad no interest in the said real estate after the execution aud delivery of the said deed, and that the levy of the said execution sale thereunder and said sheriff’s certificate constituted a cloud upon respondents’ title, which the said respondents were entitled to have quieted by a decree of the court, were clearly correct, and the judgment should be affirmed; and it is so ordered.