Bandow v. Wolven
| Decision Date | 03 April 1906 |
| Citation | 20 S.D. 445,107 N.W. 204 |
| Parties | LOVERTA J. BANDOW, Plaintiff and respondent, v. JOHN W. WOLVEN, Defendant and appellant. |
| Court | South Dakota Supreme Court |
JOHN W. WOLVEN, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Hand County, SD Hon. Loring E. Gaffy, Judge Reversed B. A. Knight and J. H. Cole Attorneys for appellant. S. V. Christ, Grigsby & Grigsby Attorneys for respondent. Opinion filed April 3, 1906 (See 120 NW 881)
This is an action to determine adverse claims to a quarter section of land situate in Hand county, title to which is in the plaintiff unless divested by a tax deed, fair on its face, recorded more than three years before the action was commenced.
There has been a special limitation applicable to this class of actions in this jurisdiction since long prior to the transactions here involved. In 1891 it was stated in the following language:
“No action shall be commenced by the former owner or owners of lands, or by any person claiming under him or them, to recover possession of land which has been sold and conveyed by deed for non-payment of taxes, or to avoid such deed, unless such action shall be commenced within three years after the recording of such deed, and not until all taxes, interest and ‘penalties, costs and expenses shall be paid or tendered by the parties commencing such action.”
Laws 1891, p. 69, c. 14, § 122. The language has been modified in later enactments, but such modifications do not affect the questions presented by this appeal. Rev. Pol. Code, § 2214. It requires no argument to show that the mere recording of an instrument in the form prescribed for tax deeds would not of itself cause the running of the statute. Moran v. Thomas, 104 NW 212. As said by the Supreme Court of Colorado:
Crisman v. Johnson, 23 Colo. 264, 47 Pac. 296. Therefore, in dealing with a tax title, departures from strictly accurate methods of procedure are of three classes: (1) Those which are immaterial; (2) those which invalidate the sale before the deed has been of record three years; and (3) those which invalidate the sale notwithstanding the special limitation. In the case at bar scarcely any step in the tax proceeding, from the assessment of the property to the recording of the deed, strictly conformed to the requirements of the statute. But the deed which is valid on its face was of record more than three years when this action was commenced and none of the defects is available except one belonging to the third class. Concerning what defects are available notwithstanding special limitations the authorities are conflicting, and the question must be determined in each particular case with reference to the laws of the jurisdiction in which it arises, and the underlying principle that failure to do what might have been dispensed with may be cured by operation of a special limitation. With these general observations we proceed to consider the particular defects disclosed by the record in this case.
Regarding the assessment upon which defendant’s tax title rests, the learned circuit court found as follows:
“That the assessor for the township of St. Lawrence, in said Hand county, in which said land is situated, made no verified return of the assessment of property in said township for the year 1893; that the book which purports to be the assessment book of said township for said year of 1893, is not verified by the affidavit of the assessor and does not describe or identify the land described in plaintiff’s complaint.”
The statute then in force contained these provisions:
Then follows the prescribed form. Laws 1891, p. 41, c. 14, § 40. As we understand the record, the evidence discloses the return of the assessor’s book in due time with the required affidavit and a certificate of the county auditor that it was subscribed and sworn to by the assessor, there being no defect therein, except that it does not now appear that the affidavit was subscribed by the assessor. If the oath was in fact administered, there was a substantial compliance with the statute though the assessor may have neglected to sign the affidavit, and notwithstanding the affidavit now appears not to have been signed, the presumption must prevail that the certificate is true as to the administering of the oath. So we conclude from the record itself that the return was verified. Moreover, an unverified assessment roll is not a nullity. Avant v. Flynn, 49 NW 15. In this instance the person who made the assessment—who determined the taxable value of the property—was duly elected or appointed to perform that duty. He gave the required bond, took the required official oath, and presumptively performed the duty with fidelity. Nothing was wanting save his signature to the affidavit, a formality which did not affect any substantial feature of his work, and which might have been dispensed with by the Legislature without injury to any one and without violating any fundamental rule of property. So, even if the return were not verified, the irregularity would not be available to the plaintiff in this action whatever might have been its effect before completion of the special limitation period.
The description of the property in the assessor’s book was as follows:
Name of owner.
Description.
What part.
Twp. or
Block
Range
Number of
Acres of
Land
F. T. Day
NE
NW
SE
SW
24
112
“
67
“
160
“
This is substantially the same as the description involved in Stoddard v. Lyon, 99 NW 1116, and is sufficient. The description in the treasurer’s sale book is as follows:
Name of owner.
Description.
Part of Section.
Name of Town.
Twp. or
Block
Range
Number of
Acres of
Land
F. T. Day
SE ¼
24
112
“
67
“
160
“
The letters “SE” are followed by the figures “¼” which remove the objections upon which our former decisions regarding insufficient descriptions are predicated.
The published notice of sale is to the effect that the taxes on the annexed list of real property have become delinquent by reason of nonpayment thereof for the year 1893 and prior years, and that said property will be sold in the manner provided by law to satisfy said taxes with penalty and interest, together with costs, giving the time and place of sale. The notice is signed by the treasurer. The annexed list so far as applicable to this case is as follows:
Tax
Persl
Pntly
&
Int
Total
F. T. Day
St. Lawrence Township—112—67
se qr
24
2 45
The letters “qr” are the recognized abbreviations for “quarter” as applied to weights and measures. Standard Dict. “Sec.” certainly means section. as certainly means southeast. It would be unreasonable to assume that Hand county would have more than one St. Lawrence township. Hence, there could be but one S. E. ¼ of section 24, St. Lawrence township, in the county, and there could be no uncertainty as to the land intended to be sold. The words and abbreviations, “Tax, Persl, Pnlty & Int, Total,” must be considered in connection with the body of the notice, the subjects to which they relate and the position in which they stand, and when so considered their meaning is apparent. The figures, “26 16, 2 45, 28 61,” necessarily relate to the amount of taxes, penalty and interest and total amount due. Notwithstanding the absence of dollar marks, no person of ordinary intelligence would doubt that these figures were designed to express certain sums of money. Observing that each group of figures was divided by a printer’s space such a person would instantly conclude that the figures preceding the space represented dollars and those following it...
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