Cain v. Ehrler
| Decision Date | 13 April 1914 |
| Citation | 146 N.W. 694,33 S.D. 536 |
| Parties | CAIN v. EHRLER et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Hand County; John F. Hughes, Judge.
Action by James Cain against Wilhelmina Ehrler and another, as the heirs of Gustave Lehmann, deceased. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Reversed and remanded for further proceedings.
J. H Cole, of Miller, for appellants.
Roy T Bull, of Redfield, for respondent.
Action to quiet title.
On the 15th day of January, 1890, one Gustave Lehmann died seized in fee of the quarter section of land in Hand county which is the subject of this action. He left surviving him, as his sole heirs at law, his widow, who remarried, and is now Wilhelmina Ehrler, and a daughter, Alma Lehmann, who was born on the 25th day of July, 1889. Said heirs are the defendants in this action, and were the owners in fee of the disputed premises at the time of the delinquent tax sale in 1890.
The taxes on said land for the year 1889 were not paid, and, at the delinquent tax sale in 1890, it was sold for the payment of said taxes. No redemption having been made from the said sale, the county treasurer, on the 21st day of September 1893, issued a tax deed to the holder of said tax sale certificate. This deed is regular and valid on its face, and is the basis of plaintiff's title as the successor in interest of the grantee in said tax deed.
Plaintiff commenced this action in October, 1903, under the provisions of chapter 194, Laws of 1903, alleging ownership of said land, and that the defendants are proper parties defendant. At the time of Lehmann's death, both he and defendants were residents of the state of Illinois, and the defendants have continued to reside there ever since. Defendants, by their answer, set up numerous irregularities in the proceedings of the taxing officers of Hand county leading up to, and the issuance of, the said deed, alleging, among other things, that no notice of the expiration of the period of redemption, and that tax deed would issue was ever given by the holder of the said tax sale certificate, and prayed for judgment quieting title in themselves, and for $1,500 as rents and profits from said land during the time it had been occupied by the plaintiff. To such answer the plaintiff interposed a reply, in which he pleaded both the three-year and the ten-year statute of limitations, and that he had made permanent improvements upon said land of the reasonable value of $500. Plaintiff had judgment for the land, and defendants appeal.
If the three-year statute of limitations applies, defendants have no standing in court, and the judgment appealed from must be affirmed; but it is contended by appellants that no legal notice of the issuance of the tax deed was ever given, and that, because no such notice was given, the treasurer was without jurisdiction to issue the deed, and that the recording of the same did not set the three-year statute to running. Chapter 151, Laws of 1890, was in force at the time of the making of the tax sale in question, and therefore must govern in this case. Gibson v. Pekarek, 25 S.D. 281, 126 N.W. 597, Ann. Cas. 1912B, 944. This chapter provided that:
Notice of the expiration of the right of redemption, addressed to the deceased, Gustave Ehrler, was published, but no affidavit signed or verified by the holder of the certificate, or his agent or attorney, was ever filed with the treasurer. This being the case, no completed service was ever made, and, under the last clause of the above-quoted statute, the period of redemption had not expired at the time the treasurer issued the deed; and therefore he was without jurisdiction to issue the same, and such deed did not divest the defendants of their title to the disputed premises. Rector & Wilhelmy Co. v. Maloney, 15 S.D. 271, 88 N.W. 575. So far as their right of redemption was concerned, it was exactly the same after the issuance of the deed as before. Darling v. Purcell, 13 N.D. 288, 100 N.W. 726; Cruser v. Williams, 13 N.D. 284, 100 N.W. 721.
But it is contended by respondent that, although the deed was issued without authority, appellants having failed to take any steps to cancel the same within three years after the recording thereof, they are barred by the provisions of section 2214, Pol. Code, from questioning its validity. Upon its face, this section of the statute purports to bar all former owners of land and their successors in interest from commencing any action to recover land that has been sold for non-payment of taxes, or to assert their claim thereto, unless the same is commenced within three years after recording the tax deed. The language of the statute is very broad, and includes every case where land has been sold and conveyed for non-payment of taxes. It makes no allowance for infancy or other disability, or for lack of authority or jurisdiction on the part of the officer issuing the deed, and, if accepted literally, it would be immaterial by what authority or under what condition a county treasurer issued a tax deed. Even though redemption had already been made, or where no tax had ever been levied, or if the land affected were not taxable when the tax was levied, if the former owner did not commence his action to have such deed canceled within three years after it had been recorded, he would be forever barred from asserting his claim. No such effect, however, has been accorded to this statute by the courts; and to permit such a result would be a violation of section 2, art. 6, of the Constitution. Most, if not all, of the states have short statutes similar to the one under consideration relative to tax deeds, but it is generally held that there are certain defects in the proceedings leading up to the issuance of the tax deed, or that may appear upon the tax deed itself, that will prevent the running of such statutes. It has been held that, if the deed does not substantially comply with the form prescribed by the statute, the three-year limitation does not bar an action. Daniels v. Case (C. C.) 45 F. 843; Moore v. Brown, 11 How. 414, 13 L.Ed. 751; Lain v. Shepardson, 18 Wis. 59; Towle v. Holt, 14 Neb. 221, 15 N.W. 203; Pearce v. Tittsworth, 87 Mo. 635; Beggs v. Payne, 15 N.D. 436, 109 N.W. 322; Matthews v. Blake, 16 Wyo. 116, 92 P. 242, 27 L. R. A. (N. S.) 339, and note. Nor where the land attempted to be conveyed was sold without authority of law. Surget v. Newman, 42 La. Ann. 777, 7 So. 731. Nor where the deed was issued upon a void assessment. Nichols v. McGlathery, 43 Iowa, 189; Early v. Whittingham, 43 Iowa, 162. Nor where the sale upon which the deed issued was made prior to the date fixed by law for holding such sales. Gomer v. Chaffee, 6 Colo. 314. Nor where the purchaser at the tax sale was under contract obligation to pay the tax for which the property was sold. Carithers v. Weaver, 7 Kan. 110. Nor where the tax for which the land was sold had been paid prior to the sale. Patton v. Luther, 47 Iowa, 236. Nor where the description of the property in the deed was different from the description thereof in the assessment rolls. Bird v. Benlisa, 142 U.S. 664, 12 S.Ct. 323, 35 L.Ed. 1151.
In Shelley v. Smith, 97 Iowa, 259, 66 N.W. 172, the Supreme Court of Iowa, in considering a statute precisely like chapter 151, Laws of 1890, in speaking of the notice said: ...
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