If,

is followed by other evidence on the part of defendant. however, we had any doubt on this point, we are of the opinion that appellant cannot raise the question for the first time in this court. It nowhere appears from the record that any objection was taken in the court below to the sufficiency of the exception. Within 20 days after the first trial counsel for defendant served a notice of intention to move for a new trial, in which they made, as the fifth ground of their motion, the error of the court in excluding the evidence referred to, in which it is stated; "which ruling of the court was duly excepted to by the defendant.” This statement was not controverted on the hearing of the motion for a new trial, though counsel for plaintiff did object to the motion on other grounds discussed by the court in its opinion. The counsel, the learned judge who heard the motion and granted the new trial, and the learned judge who settled the bill of exceptions, seem to have all assumed that the exception was properly taken. It is therefore, we think, too late to raise the question for the first time in this court. The counsel for plaintiff also contend that the court below erred in holding that the decision of the court upon the motion to vacate attachment proceedings was a bar to this action; but that question was fully considered by the court, and discussed in its opinion, and we see no reason for changing our views upon that question. The judgment of the court is therefore affirmed, and the opinion will stand as the opinion of the court. All the judges concurring.

WOOD V. CONRAD.

1. In an action for the recovery of real estate upon which permanent improvements have been made by a defendant, it must be shown that he holds his possession under color of title, and that the improvements were made in good faith, before he will be entitled to the value of such improvements.

2. A deed, to constitute color of title, must apparently transfer title to holder; not that the title should purport, when traced back to its

source, to be an apparently legal title, but the instrument relied upon must profess to convey a title to the grantee.

3. Good faith has a statutory definition. See Section 4739, Comp. Laws. 4. It is only a bona fide occupant of land who can, under either the civil law or the statute, be allowed the value of his improvements when he has been ousted by one having a better title.

5. The allowance of the value of improvements in this manner is based on equitable grounds, and it would be plainly inequitable to allow them to one who acted with full knowledge of superior rights.

(Syllabus by the Court. Opinion filed Oct. 21, 1891.)

Appeal from circuit court, Pennington county. Hon. CHAS. M. THOMAS, Judge.

Action to recover the possession of certain real estate; damages for withholding same and for rents and profits. Defendant answered denying generally, and setting up counter-claim. From the judgment entered in the trial court both parties appeal. Reversed and a new trial ordered.

The facts are fully stated in the opinion.

C. J. Buell and S. J. Parsons for plaintiff appellant.

The title and right of possession of real property sold at execution sale, remains in the judgment debtor until the sale is consumated by sheriff's deed. Comp. Laws, §§ 5148, 5154, 5159 and 5160; Whipple v. Farrer, 3 Mich. 444; Anthony v. Wessel, 9 Cal. 103; Note to Jackson v. Ramsey, 15 Am. Dec. 251; Note to Tote v. Southard, 14 Am, Dec. 580: Dupree v. Moran, 4 Cal. 196. Before the sheriff's deed issues the purchaser at execution sale cannot maintain ejectment. Curtis v. Millard, 14 Iowa, 128. Title to real property sold on execution only passes by the sheriff's deed, and before the deed actually issues the purchaser has only a lien. People ex rel Mulford, v. Mayhew, 26 Cal. 656; Ex parte Penne Iron Co., 7 Cowen, 540; Bissel v. Perne, 20 Johnson 3; Comp. Laws, §§ 5154 and 5160; Green v. Clark, 31 Cal. 592. Where an execution has been levied upon real estate such levy must be disposed of by sale or abandonment thereof, or duly set aside, before a second execution can issue. Comp. Laws, § 5147; Dawnard v, Cranshawe, 49 Iowa, 296; Dorland v. Dorland, 5 Cowen, 417; Carnes v. Smith, 8 Johnson, 337; Cutler v. Col

ner, 3 Cowen 30; Freeman on Executions, §§ 49 and 52. A sheriff's return is conclusive evidence of the facts recited therein. Ruth's Appeal, 10 Atlantic, 886; Rorer on Judicial Sales, § 500. Color of title is that which in appearance is title. but which is in reality no title. Wright v. Mattison, 18 How. U. S. 56. The party claiming under co or of title must be honest and believe that his deed conveys to him a good title to land. Den v. Hunt, Spencer 493; McCracken v. San Francisco, 16 Cal. 636; Foulker v. Bond, 11 Vroom 541; Sedgwick & Wait, Trial of Titles §§ 762, 763, 775, 777.

A bona fide possessor of land is one who not only honestly supposes himself to be vested with the true title, but is ignorant that the title is contested by any other person claiming a superior right to it. Sedgwick & Wait, Trial of Title § 694; Woodhul v. Rosenthal, 61 N. Y. 396; Wood v. Wood, 83 N. Y. 575; Walter v. Quigg, 6 Watts, 87; Haris v. Marblehead, 10 Gray. 44; Wales v. Coffin, 100 Mass. 177; Waterman v. Dutton, 6 Wis. 265; Thompson v. Thompson, 16 Wis. 91; Carpenter v. Small, 35 Cal. 346; Stark v. Starr, 1 Sawyer, 15, 25.

The betterment legislation of South Dakota §§ 5455, 5456, 5457, 5458 Comp. Laws is unconstitutional. § 1925 U. S. Rev. Stat.; Childs v. Shower, 18 Iowa, 268; Creen v. Biddle, 8 Wheaton, 1, 16; McCay v. Grandy, 3 Ohio State, 463; Hearn v. Camp, 18 Tex. 545; Madland v. Benland, 24 Minn. 372, 378, 379.

A. E. Wallace and C. L. Lewis for defendant appellant.

An appellate court will not review any error on appeal except those appearing on the face of the judgment roll, unless the errors complained of have first been brought to the actention of the trial court. State v. Hurlstone, 5 S. W. 38; Comp. Stat. Dak. § 5094; Sierra County v. Dona Ana County, N. M., 21 Pac. 83; Crutts v. Wray, 27 N. W. 634; Wyoming Loan and Trust Company v. Halliday Co., 24 Pac. 193; Sutherland v. Putnam, 24 Pac. 320; Washington R. R. Co. v. Osborne, 21 Pac. 421 and cases citied, 9 Cal. 67; Klatz v. Perteet, 13 S. W. 955; Brown v. Brown, 2 S. E. 808, 6 S. E. 923; Alexander v. Humber, 6 S. W. 453; Fairfield v. Dawson, 17 Pac. 804; Barker

v. Todd, 34 N. W. 895; Golden Perry Med. Co. v. Smith 2 Dak. 457-8; Bush et al. v. N. P. R. R. Co., 3 Dak. 449.

§ 5458 Comp. Laws, is both valid and equitable. Ross v. Irving, 14 Ill. 17; Cooley's Const. Lim. 4 Ed. 485, p. 486; Stump v. Hornback, 6 S. W. 356; Searl v. School District, 133 U. S. 553; Pom. Rem. § 294; Sussenbach v. 1st Nat'l Bank, 5 Dak. 477; Ely v. N. M. & A. R. R. Co., 129 U. S. 291; Comp. Laws §§ 5449 to 5464.

Rental value of land cannot be proven by showing what return its money value would bring in interest if loaned out. City of New Orleans v. Christmas, 131 U. S. 131-191; Seg. & W. Trial of Title to Land, § 667; Worthington v. Hess, 16 A. 534; Maguire v. Labeaume, 7 Mo. App. 179. When the evidence is conflicting, the verdict of the jury or the findings of a trial referee or judge will not be disturbed on review or appeal. Phillip Best Brewing Co. v. Pillsbury & Hurlbert Elevator Co., 5 Dak. 62; Franz Falk Brewing Co. v. Mielenz, 5 Dak. 136; Lyons v. Harris, 73 Iowa, 292; Morisey v. Swinson, 10 S. E. 754; Perkins et al v. Berry, 9 S. E. 621; Larkin v. Tobin, 29 N. Y. S. 185; Pfandler P. F. Co. v. McPherson, 3 N. Y. S. 609; Timmons v. Moody, 3 N. Y. S. 714; Cohen v. Irvin, 7 N. Y. S. 106; Bunnels v. Moffat, 41 N. W. 224.

The action of ejectment is an action at law, in which, unless waived, the defendant is entitled to a jury. Article 6, § 6, Const. South Dakota; Sedg. & W. Trial of Title, § 170; Hipp v. Bobin, 60 U. S. 278; Tillons v. March, 67 Penn. St. 507. The court has no power to interfere with the finding of the referee, except where not supported by evidence, in which case he would have only the right to set it aside upon proper application and grant a new trial. Lyons et al v. Harris et al, 34 N. W. 864; Preston v. Morrow, 66 N. Y. 452; Cooley v. Osborne, 50 Iowa, 44; State v. Hurlstone, 5 S. W. 38; Caruth v. Walters, 3 S. W. 865; Paulin v. Brown, 5 S. E. 107.

A party has color of title when he has an apparent although not real title founded upon a deed good in form purporting to convey the same. Wheeler v Merriman, 15 N. W. VOL. 2, S. D.-22

665; Lyneweet v. Fahey, 6 N. W. 403; 3rd Wash. R. P. 510; Railroad v. McCaskill, 4 S. E. 468; Hodges v. Eddy, 38 Vt. 327; Brooks v. Bruon, 35 Ill. 394; Russell v. Erwin, 38 Ala. 48; Edgerton v. Bird, 6 Wis. 512.

Improvements made on land after notice of adverse title. can be recovered for, if party making same acquired his title in good faith. § 5455 Comp. Laws; Searle v. School District, 133 U. S. 553; McCagg v. Heacock, 34 l. 476. A purchaser at a subsequent execution sale cannot impeach the validity of a former sale collaterally for mere irregularities. Rorer Judg. Sales., §§ 1059, 1060 and 1061; §§ 789, 791, 794 and 796; Atwood v. Beorn, 8 N. W. 55. A certificate of sale after expiration of a year to redeem makes the purchaser absolute owner. Comp. Laws, §§ 5148-5160; Merchant v. Woods, 27 Minn. 396; Parker v. Dacres, 130 U. S. 43.

BENNETT, J. This was an action brought by plaintiff against the defendant to recover the possession of lots 5 and 6, block 102, in the old town site of Rapid City, Pennington county, S. D. The admitted and established facts are as follows: About July 8, 1881, the title to the property in dispute passed from the United States to John W. Nolin, in trust, as provided by town site law; and about December 9th of the same year said Nowlin, as such trustee, conveyed the same to John E. Cyr, of the firm of Cyr & Volin. On the 9th day of February, 1884, Henry G. Hall, Herbert S. Hall, and Everett E. Hall, copartners under the name of H. G. Hall & Sons, recovered a judgment against John E. Cyr and Louis Volin, copartners as Cyr & Volin, for $251.70, in the district. court of the first judicial district of Dakota territory, within and for Pennington county, which judgment was duly docketed on the 13th day of February, 1884, in the office of the clerk of said court. On the 17th day of June, 1884, Jacob S. Gantz recovered a judgment in the same court against the same parties, for $636.58. On August 13, 1884, Hall & Sons took out an execution on their judgment, and placed it in the hands of the sheriff, and he levied on lots 4 and 5 in said block 102. Notice of sale was published, but the sale never took place, and the