Doling v. Hyde County

• Decision Date: 16 February 1945
• Docket Number: 8713.
• Parties: DOLING v. HYDE COUNTY et al.
• Court: South Dakota Supreme Court

17 N.W.2d 693

70 S.D. 339

DOLING v. HYDE COUNTY et al.

No. 8713.

Supreme Court of South Dakota

February 16, 1945

M. C. Cunningham, of Highmore, for appellant.

C E. Noel, of Highmore, and Martens & Goldsmith, of Pierre for respondent.

SICKEL Judge.

This action was brought by plaintiff Leo Doling under SDC 37.15 for the purpose of determining adverse claims to the southeast quarter of section 1, township 114 north, range 72 west of the fifth P. M., Hyde county. The defendants are Hyde county Frank Melbourn, and persons unknown.

Otto Schliessmann and Mildred Schliessmann acquired title to the property in the year 1930. The property was sold to Hyde county in 1936 for the 1935 taxes. Mildred Schliessmann died February 10, 1941. In May of the same year the treasurer of Hyde county commenced proceedings to take tax deed. The tax deed was issued to Hyde county July 26, 1941. On January 8 1943, T. A. Schliessmann, as sole heir of Mildred Schliessmann, deceased, and Otto Schliessmann, conveyed their interest in the property to the plaintiff. Then the plaintiff deposited with the county treasurer the sum of $156.42 representing the unpaid taxes, interest, penalty and costs of taking tax deed. He also made application to the county commissioners for a conveyance of the property. The County commissioners granted, and later rescinded, the application and then advertised the property for sale at public auction. On March 20, 1943, the defendant Frank Melbourn became the purchaser at the sale for the sum of $160 which he paid to the county. Then plaintiff brought this action. The named defendants were served personally and unknown defendants were served by publication. The circuit court entered findings of fact and conclusions of law in favor of plaintiff and against the defendants on August 2, 1943, and entered its decree on August 6th of the same year. These findings, conclusions and decree were amended September 29, 1943.

Appellant claims that the circuit court erred in admitting in evidence the deposition of T. A. Schliessmann. In this deposition the witness testified that he was the father and only heir of Mildred Schliessmann who died intestate while owning an undivided one-half interest in the above described property. It is appellant's contention that in admitting this evidence and making decision thereon, the circuit court exercised jurisdiction over a probate matter, contrary to Section 20, Art. V of the state constitution.

It is the established rule in this state that the equity jurisdiction of the circuit court extends to matters of probate, but that such jurisdiction will be exercised only in special cases. Welsh v. Krause et al., 38 S.D. 264, 161 N.W. 189; Jacquish v. Deming, 40 S.D. 265, 167 N.W. 157; Howe v. Larson, 68 S.D. 203, 299 N.W. 876.

As stated above, this was an action to quiet title. It involved the validity of a tax deed to the county, and the validity of a deed by the county to defendant Melbourn. It also involved the right of the respondent to redeem from a tax sale. The deposition of T. A. Schliessmann was offered by respondent to prove his ownership and title to the property. The probate of the Mildred Schliessmann estate in the county court would not afford the speedy and adequate remedy required under these circumstances. This constituted a special circumstance under which the circuit court properly exercised jurisdiction over matters of probate. Jacquish v. Deming, supra.

Appellant also assigns as error the findings, conclusions and judgment directing the application of $141.88 of Doling's deposit to the payment of taxes on the land, and a refund of $14.54, the excess of the deposit over taxes, to Doling; also that part of the judgment directing the county to refund to Melbourn the $160 paid by him to the county for the purchase of the land. SDC 57.0902 provides:

'In any action or proceeding to recover real or personal property sold for taxes, or to invalidate or cancel any tax sale certificate, tax deed, or other tax sale proceeding, the party seeking such relief must specify and tender in his pleading the amount of the tax, if any, which he concedes to be due....