Boehrs v. Dewey County, No. 9191

CourtSouth Dakota Supreme Court
Writing for the CourtLEEDOM
Citation74 S.D. 75,48 N.W.2d 831
Docket NumberNo. 9191
Decision Date07 August 1951
PartiesBOEHRS v. DEWEY COUNTY et al.

Page 831

48 N.W.2d 831
74 S.D. 75
BOEHRS

v.
DEWEY COUNTY et al.
No. 9191.
Supreme Court of South Dakota.
Aug. 7, 1951.

[74 S.D. 76] Morgan & Neumayr, and K. J. Morgan, all of Gettysburg, for appellants.

P. M. Burns, Timber Lake, for respondent.

LEEDOM, Judge.

This action involves ownership of Dewey County land sold for taxes. Appellants claim title as successors to the interest of the deceased owner of record at the time of the issuance of tax deeds. Respondent claims title through purchase from Dewey County under two tax deeds covering noncontiguous tracts.

The principal issue in the case is in our opinion determined by the answer to this question: Does the three-year statute of limitation, SDC 57.0903 as amended by Ch. 337, Laws 1941, operate in favor of a tax deed that is based on a certificate of sale for which payment is later provided by an installment contract under Ch. 194, Laws 1935, when the notice to redeem from the certificate was given and the tax deed issued with all payments due on the contract paid, but all taxes subsequently accruing delinquent? It is our view as hereafter fully set forth that issuance of a tax deed under these circumstances is a 'jurisdictional' defect and that the statute of limitation is not a bar to an attack on the deed. It follows that it was error for the trial court to quiet respondent's title based on such tax deeds.

[74 S.D. 77] An incidental question is presented and becomes pertinent. In such a case as this should the trial court determine separate redemption amounts for pieces of land separately taxed and separately sold? This question we answer affirmatively.

The essential facts on which we rest our opinion are these: The qualified and acting administrator of the deceased owner of record entered into contract with Dewey County under the tax adjustment statute cited above for installment payment of the delinquent 1933 taxes on two tracts of land. This administrator, a brother of the deceased record owner, three sisters and another brother of decedent, are the successors to decedent's interest in the land. Under the provisions of the tax statute it was necessary for the administrator to pay the 1934 taxes in full and each year thereafter one-tenth of the 1933 tax beginning one year after November 6, 1935, the date of the contract. All of these payments were made to and including the ninth installment which matured November 6, 1944. The administrator failed, however, to pay the 1935 taxes and all others subsequently accruing down to the present time.

After the ninth contract installment had been paid (about November 6, 1944) and before November 6, 1945 when the last installment became due, Dewey County officials proceeded to take tax deeds to the property and in this period served two separate notices to redeem from the certificates covering the 1933 taxes and issued two tax deeds. The two tracts were noncontiguous and had been separately assessed and separately sold for the 1933 taxes all of which were covered by the tax installment contract.

Facts relating to the service of one of the notices to redeem and to an incorrect recital in one deed as to date of sale of the property are not significant because we do not reach these questions in this opinion.

This court has from very early decisions consistently taken the position

Page 833

that a tax deed is invalid when issued on a certificate representing taxes previously paid, or from which there has been a redemption; and has recognized such a defect as jurisdictional against which a statute of limitation is necessarily inoperative. The position was announced[74 S.D. 78] in...

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12 practice notes
  • Baker v. Continental Western Ins. Co., No. CIV. 90-5063.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • 5 Octubre 1990
    ...is not there." Helmbolt, 404 N.W.2d at 59 (citing, Petition of Famous Brands, Inc., 347 N.W.2d 882 (S.D.1984); Boehrs v. Dewey County, 48 N.W.2d 831 (S.D.1951)). To adopt the contrary view would be to relegate the modern coverage provided by statute to the antiquated status of uninsured jud......
  • Heinemeyer v. Heartland, No. 24717.
    • United States
    • Supreme Court of South Dakota
    • 12 Noviembre 2008
    ...language used and cannot supply words in the statute." In re Yanni, 2005 SD 59, ¶ 15, 697 N.W.2d 394, 400 (citing Boehrs v. Dewey County, 74 S.D. 75, 79, 48 N.W.2d 831, 833-34 (1951)(emphasis added)). SDCL 12-1-4 provides clear criteria to determine a person's voting ZINTER, Justice (concur......
  • Kotval v. Gridley, No. 82-1355
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 18 Enero 1983
    ...available to the plaintiff." 604 P.2d at 1311. 8 Other South Dakota cases concerning amendments to statutes include Boehrs v. Dewey County, 74 S.D. 75, 48 N.W.2d 831 (1951) (later statute amending earlier statute providing for payment of taxes by installment did not affect contract made und......
  • Petition of Famous Brands, Inc., No. 14269
    • United States
    • South Dakota Supreme Court
    • 16 Febrero 1984
    ...add voluntarily unlimited hazard to the already inexact and uncertain business of searching for legislative intent. Boehrs v. Dewey County, 74 S.D. 75, 79, 48 N.W.2d 831, 834 One of the primary rules of statutory and constitutional construction is to give words and phrases their plain meani......
  • Request a trial to view additional results
12 cases
  • Baker v. Continental Western Ins. Co., No. CIV. 90-5063.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • 5 Octubre 1990
    ...is not there." Helmbolt, 404 N.W.2d at 59 (citing, Petition of Famous Brands, Inc., 347 N.W.2d 882 (S.D.1984); Boehrs v. Dewey County, 48 N.W.2d 831 (S.D.1951)). To adopt the contrary view would be to relegate the modern coverage provided by statute to the antiquated status of uninsured jud......
  • Heinemeyer v. Heartland, No. 24717.
    • United States
    • Supreme Court of South Dakota
    • 12 Noviembre 2008
    ...language used and cannot supply words in the statute." In re Yanni, 2005 SD 59, ¶ 15, 697 N.W.2d 394, 400 (citing Boehrs v. Dewey County, 74 S.D. 75, 79, 48 N.W.2d 831, 833-34 (1951)(emphasis added)). SDCL 12-1-4 provides clear criteria to determine a person's voting ZINTER, Justice (concur......
  • Kotval v. Gridley, No. 82-1355
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 18 Enero 1983
    ...available to the plaintiff." 604 P.2d at 1311. 8 Other South Dakota cases concerning amendments to statutes include Boehrs v. Dewey County, 74 S.D. 75, 48 N.W.2d 831 (1951) (later statute amending earlier statute providing for payment of taxes by installment did not affect contract made und......
  • Petition of Famous Brands, Inc., No. 14269
    • United States
    • South Dakota Supreme Court
    • 16 Febrero 1984
    ...add voluntarily unlimited hazard to the already inexact and uncertain business of searching for legislative intent. Boehrs v. Dewey County, 74 S.D. 75, 79, 48 N.W.2d 831, 834 One of the primary rules of statutory and constitutional construction is to give words and phrases their plain meani......
  • Request a trial to view additional results

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