Cain v. Ehrler

• Decision Date: 28 August 1915
• Docket Number: No. 3455.,3455.
• Citation: 153 N.W. 941,36 S.D. 127
• Parties: CAIN v. EHRLER et al.
• Court: South Dakota Supreme Court

36 S.D. 127

153 N.W. 941

CAIN

v.EHRLER et al.

No. 3455.

Supreme Court of South Dakota.

Aug. 28, 1915.

McCoy, P. J., and Whiting, J., dissenting.

Appeal from Circuit Court, Hand County; John F. Hughes, Judge.

On rehearing. Affirmed.

For former opinion, see 33 S. D. 536, 146 N. W. 694.J. H. Cole, of Miller, for appellants.

R. T. Bull, of Redfield, and A. K. Gardner, of Huron, for respondent.

POLLEY, J.

[1] In this case a rehearing was granted for the sole purpose of examining into the effect upon the tax deed involved of the limitation contained in section 2214, Pol. Code. Our former decision is reported in Cain v. Ehrler et al., 33 S. D. 536, 146 N. W. 694, to which reference is made for a statement of the facts involved in the case. It is conceded that the notice required by chapter 151, Laws 1890, was not served before the deed was executed, and we held in the former opinion that, because said notice had not been served, the limitation found in section 2214 did not bar appellants' right to assert their interest in the real property affected by said deed. In so holding, respondent contends that we overlooked the former decisions of this court wherein respondent claims a different conclusion is reached-contending that this court has repeatedly held that a tax deed, fair upon its face, could not be assailed by the former owner of the land affected thereby, more than three years after said deed had been recorded, because notice of the expiration of the period of redemption had not been given prior to the execution of such deed. Respondent contends that the rule established by these decisions has become a rule of property, upon which numerous parties have relied, and under which title to real property has been acquired. In support of this contention, they cite the following decisions of this court: Bandow v. Wolven, 23 S. D. 124, 120 N. W. 881;Lauderdale v. Pierce, 27 S. D. 460, 131 N. W. 514;Cornelius v. Ferguson, 23 S. D. 187, 121 N. W. 91;Gibson v. Smith, 24 S. D. 514, 124 N. W. 733;Northwestern Mtg. T. Co. v. Levtzow, 23 S. D. 563, 122 N. W. 600;Sobek v. Bidwell, 24 S. D. 469, 124 N. W. 431.

[2] It is true that, in at least some of these cases, the court used language that lends some color to respondent's position; but, in determining whether any decision is an authority upon a given proposition of law, it is necessary to ascertain the exact point that was under consideration when that decision was rendered. This rule is expressly emphasized and pointed out in Bandow v. Wolven, 20 S. D. 445, 107 N. W. 204. At the very outset it may be said that in none of the cases cited by respondent did this court hold that an action to set aside a tax deed that had been executed without the service of the notice of expiration of the right of redemption is barred by the three-year limitation; nor did it appear in any of those cases that such notice had not been served. In Bandow v. Wolven, on its first hearing (20 S. D. 445, 107 N. W. 204), the court, in discussing the treasurer's sale of land for delinquent taxes, used the following language:

“The law required the notice of sale to be published ‘once a week for three consecutive weeks commencing the first week in October preceding the sale.’ *** The notice required by statute was not given, an irregularity which certainly would have invalidated the sale had timely objection been made. Is it now available? We think not. The owner of the land cannot be heard to say that he did not know the law. He knew that his land was subject to taxation, that it was assessable every year, that no demand for taxes was necessary, that they became delinquent on the 1st day of March of the year after they were levied, and that if they were not paid it was the duty of the treasurer to sell his land to satisfy the same on the first Monday in November. The time of the assessment, levy, and sale was prescribed by the statute. The law itself gave notice of the time and place of sale. The Legislature might have dispensed with further notice. It has declared that no action shall be commenced by the former owner or by any person claiming under him to recover possession of land which has been sold and conveyed by deed for nonpayment of taxes, or to avoid such deed, unless such action shall be commenced within three years after the recording of such deed. The declaration is comprehensive and unqualified. No doubt exists as to the legislative intent. By the terms of the statute no defects in tax proceedings are excepted from the operation of the limitation; none should be recognized by the courts, except such as are required to prevent owners from being deprived of their property without due process of law. The legislative will should prevail to the fullest extent possible. It is the owner's duty to pay his taxes when they become due. He knows the consequences of failure to do so, the effect of the special limitation, and has no cause to complain; ample opportunity being afforded for the protection of his rights. If no published notice of the sale was necessary, certainly a defective one should not be regarded as a jurisdictional defect. There was no want of power. It may have been irregularly pursued, but the irregularity was waived by the owner's failure to assert his rights within the period prescribed by the statute, and that period is neither unjust nor unreasonable.”

Keeping in mind that it was the notice of treasurer's tax sale the court had under consideration, and not the notice of expiration of the period of redemption, this is a correct statement of the law, because the law itself fixes the time, place, and manner of doing every act necessary to be done by the taxing officers to charge real property with a lien for the taxes, and the law itself is a continuous notice to property owners of all these facts. The property owner knows that his land is subject to taxation, that it is assessable annually, that no demand for taxes is necessary, that prior to 1913, taxes became delinquent on the 1st day of March following the levy, and that, if said taxes are not paid, the treasurer will sell the land in November; and, being advised by law of all these facts, he is in no wise prejudiced by the failure of the treasurer to give the statutory notice of the sale. But the court proceeds further, and, in discussing the return to the notice that tax deed was about to issue, said:

“What has been said regarding the tax sale notice applies with equal force to the contention that the return of the published notice, required before the deed was issued, does not show that the owner of the land was a nonresident. Assuming the record to be defective in this respect, and that the defect was such as to invalidate the sale before the expiration of the special limitation, it is not now available, because such a notice might have been dispensed with altogether, without depriving the owner of his property without due process of law.”

This statement, so far as it applies to the notice that the tax deed is about to issue, is mere dictum, for it was not the giving of such notice that was then under consideration.

What is true relative to the treasurer's notice of sale is by no means necessarily true relative to the notice of the expiration of the period of redemption. While the law imports to a property owner knowledge that his property is subject to taxation, that it is assessable annually, that no demand for taxes is necessary, that his taxes will become delinquent if not paid within a certain time, and that the land will be sold to satisfy the same, it does not purport to charge him with knowledge that a tax deed will issue at the end of two years after the sale, or at any other time until he has been given statutory notice thereof; and it expressly and affirmatively says to him that his right of redemption shall not expire until sixty days after he has been given such notice and proof of service is filed with the county treasurer. The statutory provisions relative to the two notices are radically different. While the statute merely requires the publication of the notice of sale, without declaring what the consequence will be if such notice is not given, it goes further in regard to the notice of expiration of the right of redemption, and declares that the right of redemption shall continue until the notice is given.

On a second hearing of Bandow v. Wolven (23 S. D. 124, 120 N. W. 881) this court qualified its former opinion in the following manner:

“For the reasons hereinafter stated, we do not think the determination of the question of whether complying with the statute in regard to notice of expiration of period to redeem from tax sale and of intention to take out tax deed is a jurisdictional matter becomes essential to the decision of this cause, and we prefer to modify the former decision of this court to the extent of not determining that point; but in so doing we wish it understood that we do not hold such decision wrong, but simply leave the determination of this question to such time as it may become essential to the decision of some cause before this court.”

This leaves the question wholly unsettled, and deprives that case of any value it might otherwise have had as a precedent in this case. It also indicates, as plainly as it possibly can, that up to that time the court considered the matter of the notice of the expiration of the period of redemption as an open and unsettled question, and renders all former decisions that are broad enough to include the question valueless as authority. But it goes further, and expressly announces that the question shall remain and be considered as undetermined until “such time as it may become essential to the decision of some case before this court.”

In neither Cornelius v. Ferguson, Northwestern Mtg. T. Co. v. Levtzow, Lauderdale v. Pierce, nor Gibson v. Smith, cited by respondent, was the question of notice of expiration of the period of redemption...