Carrol v. Fowler

• Decision Date: 26 March 1918
• Docket Number: 4241
• Citation: 167 N.W. 145,40 S.D. 244
• Parties: JAMES D. CARROL, Plaintiff and appellant, v. W. A. FOWLER et al. Defendants and Respondents.
• Court: South Dakota Supreme Court

40 S.D. 244

167 N.W. 145

JAMES D. CARROL, Plaintiff and appellant,

v.

W. A. FOWLER et al. Defendants and Respondents. South Dakota Supreme Court Appeal from Circuit Court, Buffalo County, SD Hon. Frank B. Smith, Judge #4241--Affirmed T. J. Spangler Attorneys for Appellant. A. E. Hitchcock Attorneys for Respondent. Opinion filed March 26, 1918

McCOY, J.

Plaintiff, claiming to be free owner, instituted this action to determine adverse ownership and claim to a certain quarter section of land situated in Buffalo county. Defendant Fowler answered, alleging ownership in himself. Findings and judgment were in favor of defendant Fowler, and plaintiff appeals.

Plaintiff, the appellant, claims to be the owner of said land under and by virtue of two certain tax deeds. The respondent claims to be the owner of said lands in fee under and by virtue of a patent from the United States government, and subsequent mesne conveyances. The trial court found that both tax deeds, under which appellant claims, were wholly void. The first tax deed under which appellant claims was issued to one Bowdle upon a sale of said lands, made on the 3d day of October, 1887, for delinquent taxes of the year 1886. It appears that the said tax deed so issued to Bowdle omitted the following words: "And had been duly assessed and properly charged on the tax books of duplicates for the year 1886." We are of the opinion that this omission constituted a fatal defect, appearing on the face of said deed. Rector & Wilhelm Co. v. Maloney, 88 N.W. 575; Horswill v. Farnham, 92 N.W. 282.

The second tax deed under which appellant claims was issued to one Newcomer upon a sale for delinquent taxes made November 7, 1892, for the taxes of the year 1891. The notice of taking of the tax deed was signed by the Iowa & Dakota Land Company instead of by Newcomer. It also appears from the record that at the time the said Newcomer be—came the owner of the certificate of tax sale, on which said deed to him was based, the said Iowa and Dakota Land Company claimed to be the owner of said land under the said tax deed theretofore issued to said Bowdle, and it also appears that at the time the said Newcomer obtained title to said certificate of tax sale, and at the time said tax deed was issued to him, he was president of the Iowa & Dakota Land Company. We are of the view that under these circumstances the said tax deed so issued to said Newcomer was also void and of no effect whatever....