King v. Lane
| Decision Date | 19 December 1906 |
| Citation | 110 N.W. 37,21 S.D. 101 |
| Parties | KING et al. v. LANE. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Hand County.
Action by Frank J. King and another against W. H. Lane. From a judgment in favor of defendant, plaintiffs appeal. Reversed.
B. A Knight and J. H. Cole, for appellants.
Crawford & Taylor, for respondent.
On the 2d day of November, 1891, the 160 acres of land made the basis of this action to quiet title was sold to plaintiffs' grantor for the delinquent taxes of the preceding year, and the treasurer's deed under which they claim fee-simple ownership is in the form prescribed by section 1639 of the Compiled Laws of 1887, and contains the recital that the whole quarter section "was the least quantity of the tract above described that would sell for the amount due thereon for taxes, costs and charges as above specified." It was thus conclusively shown that the property was offered and sold pursuant to section 1622 of the Compiled Laws of 1887, which provides, among other things at variance with the later statute, that "the person who offers to pay the amount due on any parcel of land for the smallest portion of the same is to be considered the highest bidder." According to the statutory method in force at the time of this sale, the treasurer is required to first offer in bulk all the lands advertised for delinquent taxes and the purchaser thereof is the person who bids the full amount due, and states in his bid the lowest rate of interest per annum at which he will pay the same, which in no event can exceed 15 per cent. Failing to receive a bid for the lands thus offered in bulk, he must proceed in like manner to offer each separate tract for sale in numerical order as the same appears on the tax list. Nothing less than the entire tract can be sold, and the person offering to pay the full amount of taxes, penalty, and costs at the lowest rate of interest per annum shall be considered the best bidder. Section 106, c. 14, p. 64, Laws 1891. As the form of tax deed given in the statute is to aid the treasurer in stating the facts essential to its valdity, and substantial adherence to such form is all that is required, it must have been the intention of the Legislature to allow such deviation therefrom as subsequent changes in the statute might make necessary in order to truthfully show the procedure essential to a valid sale. By following the form of a tax deed made conclusive as to the truth of all the facts recited and prescribed for use under a statute that had been repealed a clearly illegal method of conducting the tax sale is disclosed therein, and the deed is therefore void upon its face. Reckitt v. Knight, 16 S.D. 395, 92 N.W. 1077; Thompson v. Roberts, 16 S.D. 403, 92 N.W. 1079.
In Reckitt v. Knight, supra, we say: "The recitals of such a deed are in the nature of a final certificate on the part of the treasurer, designed to perpetuate the record, and show that all preliminary steps have been taken at the time and in the manner provided by law. In construing our statute relative to a sale made at public auction to an authorized bidder, omissions from the statutory form relating to jurisdictional matters have been uniformly held sufficient to render the deed void upon its face. Unless the form provided by the earlier statute must yield to substance, to the extent of showing a compliance with subsequent law on the part of a purchasing county, the purpose of the Legislature in requiring jurisdictional recitals in a tax deed is entirely defeated. According to a most familiar rule of evidence, and independently of the statutory provision that "such deed shall be conclusive evidence of the truth of all the facts therein recited, "it would not be competent to show in this action that, notwithstanding the recitals of the deed, the land was not illegally sold. It follows that plaintiffs took nothing as the grantees of the purchaser at such illegal tax sale, and, as the statute of limitations does not run in favor of a tax deed void upon its face, the fact that this deed had been of record for more than three years before the commencement of the action is of no substantial consequence.
It affirmatively appears upon the face of the record that, claiming title in fee, plaintiffs and their grantor have paid at maturity all taxes assessed from the year 1891 to 1901, inclusive, and it is alleged in the complaint, and nowhere denied, that they were in possession of the premises at the time of and long prior to the commencement of this action. As they wholly relied upon the proposition that their tax deed was valid and the alleged Scavenger title void, no right to relief was contended for at the trial by virtue of our decisions to the effect that a void tax deed constitutes color of title, nor was any claim made that they had complied with the statute prescribing conditions under which absolute title may be acquired by payment, under claim and color of title made in good faith, of all taxes legally assessed for 10 successive years. Parker v. Vinson, 11 S.D. 381, 77 N.W. 1023; Meadows v. Osterkamp, 13 S.D. 571, 83 N.W. 624; Stokes v. Allen, 15 S.D. 421, 89 N.W. 1023; sections 54, 55, Rev. Code Civ. Proc.
In support of defendant's adverse claim and assertion of fee title based upon a tax judgment and certificate of sale evidence was...
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