Cornelius v. Ferguson
| Decision Date | 06 May 1909 |
| Citation | 121 N.W. 91,23 S.D. 187 |
| Parties | MARGARET E. CORNELIUS, Plaintiff and appellant, v. ALLIE E. FERGUSON et al., Defendant and respondent, Elsie J. Lynch Intervenor. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Beadle County, SD
Affirmed
W. A. Lynch and T. H. Null
Attorneys for appellant.
A. W. Wilmarth and A. W. Burtt
Attorneys for respondents.
(See 16 S.D. 113, 91 N.W. 460, and 17 S.D. 481, 97 N.W. 388)
This action was instituted by the plaintiff, Margaret E. Cornelius, against defendant, to quiet title to certain lots in the city of Huron. During the progress of the action, the plaintiff conveyed the property to Elsie J. Lynch, intervener, who has since prosecuted the same in the lower court and in this court, in the name of the plaintiff. Findings and judgment being in favor of the defendant, the plaintiff has appealed. The complaint is in the usual form. The defendant in her answer pleads title in herself, by virtue of a tax sale and tax deed issued thereunder, and the three years’ statute of limitations. The case was originally tried to the court, and findings and judgment rendered in favor of the plaintiff; the trial court holding that the said tax deed was void upon its face, and therefore the action was not barred by the statute of limitations. On appeal to this court the judgment of the court below was affirmed, and the decision is reported in 16 S.D. 113, 91 N.W. 460. Subsequently upon rehearing the original decision of this court was disaffirmed, and, the judgment of the circuit court was reversed, and the case remanded for further proceedings consistent therewith. This decision is reported in 17 S.D. 481, 97 N.W. 388. In the latter decision the majority of the court held that the deed was not void upon its face, but was a valid deed, and further held that “it is clear from the record presented that the appellant’s tax deed to which no valid objection has been suggested was recorded more than three years before the commencement of the action, and a complete defense thereto has been established.” Upon the remittitur going down from this court, the case was tried in the circuit court a second time, and the case is now before us for alleged errors committed by the trial court in holding that the deed was not void upon its face, and that it, having been recorded for more than three years prior to the commencement of the action, was a bar to the same, and also for alleged errors of the court in striking out the evidence of the plaintiff tending to prove certain defects in the tax proceedings, resulting in the deed, which, the plaintiff contends, had the effect of rendering the tax proceedings and tax deed void, and therefore not a bar to the action.
It is insisted by the respondent, in support of the rulings and judgment of the trial court, that the former decision of this court, holding that the tax deed was valid upon its face, was conclusive upon the parties, and that the decision constitutes the law of this case, and no question as to the validity of the tax deed can be considered on this appeal. We are inclined to take the view that the defendant is right in her contention, and that, this court having held on the former appeal that the tax deed was not void upon its face, but was a valid deed, that decision is the law of the case and conclusive as between the parties in all subsequent proceedings in the action. Plymouth County Bank v. Gilman, 3 S.D. 170, 52 N.W. 869; D. M. Osborne & Co. v. Stringham, 4 S.D. 593, 57 N.W. 776. See, also, note to City of Hastings v. Jefferson H. Foxworthy, 34 LRA 321. No claimed defect therefore, either in the form or execution of The tax deed, could be raised on the second trial. The learned trial court was therefore clearly right in holding the tax deed a valid deed, and that, it having been on record for more than three years, it constituted a bar to the action, unless it could be shown, aliunde of the tax deed itself, that the premises in controversy were not within the taxing district, or were not assessed, or not subject to taxation, or teat the taxes assessed thereon had been paid before sale, or the property redeemed from sale before the issuance of the tax deed. Bandow v. Wolven, 20 S.D. 445, 107 N.W. 204; Moran v. Thomas, 19 S.D. 469, 104 N.W. 212.
The objections to the tax deed offered in evidence by the defendant having been overruled, the plaintiff and intervener then offered the following evidence for the purpose of defeating the said tax deed:
“(1) The assessor’s tax list for the year of 1899 for the purpose of showing that the lots described in the complaint were separately listed and assessed for taxation for the year 1889 to L. K. Church as owner.
(2) Evidence for the purpose of showing that no tax levy was made in the year 1889 against said lots.
(3) Evidence for the purpose of showing that no notice was given of the sale of said lots for the alleged tax of the year 18...
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