Messersmith v. Stanga

• Decision Date: 15 January 1946
• Docket Number: 8780
• Citation: 21 N.W.2d 321,71 S.D. 88
• Parties: HATTIE MESSERSMITH, Appellant, v. WALTER F. STANGA, Treasurer of McCook County, SD, Respondent.
• Court: South Dakota Supreme Court

71 SD 88, 21 NW2d 321 (1946)

HATTIE MESSERSMITH,

Appellant,

v. WALTER F. STANGA,

Treasurer of McCook County, SD,

Respondent.

South Dakota Supreme Court

Appeal from Circuit Court, McCook County, SD

Hon. Lucius J. Wall, Judge

#8780—Affirmed

Parliman & Parliman, Sioux Falls, SD

Attorneys for Appellant.

James R. McGee, Salem, SD

Attorney for Respondent.

George T. Mickelson, Attorney General

Benj. D. Mintener, Assistant Attorney General, Pierre, SD

amici curiae.

Opinion Filed Jan 15, 1946

ROBERTS, Judge.

This is an appeal from a judgment of the Circuit Court of McCook County dismissing an action brought by Hattie Messersmith against the treasurer of that county to enjoin and restrain him from issuing a tax deed.

The material facts, as disclosed by the record, are that plaintiff is the owner of lots one and two in block 3 of the original townsite of Salem. December 21, 1931, these lots were sold for the 1930 taxes and certificates of sale were issued to McCook county. March 7, 1935, plaintiff made application pursuant to Chap. 194, Laws 1935, for the privilege of paying the 1930, 1931, 1932 and 1933 taxes in ten equal installments of $68.16 each and deposited with the county the amount of the 1934 taxes and upon approval of the application by the board of county commissioners, a tax receipt for that year was issued dated April 8, 1935. Plaintiff made five payments of $68.16 each. The total of the receipts written on 1930 tax receipts blanks is $215.22. It appears from the tax contract that this was the amount of delinquent taxes chargeable against the property for the year 1930. The balance of the five payments is evidenced by the use of 1931 tax receipt blanks. The receipt that was issued March 5, 1936, for the amount of the first installment contains no reference to the contract. There is stamped on the receipts subsequently issued the words “Contract No ___ Installment ____ Balance 19____ Tax Unpaid _____ Balance-Contract Unpaid—” The number of the contract “126” is inserted and with exception of the receipts issued for the third installment there also appears the notation “Payment is accepted under compromise tax contract and does not affect the validity of the tax sale certificate held by the County unless subsequent taxes are paid in full.”

Plaintiff subsequently paid the balance of the delinquent taxes chargeable against lot two. February 3, 1944, the county caused notice to be served upon plaintiff stating that the right of redemption would expire and a deed would issue to lot one upon the expiration of 60 days unless the property be redeemed as provided by law.

At the time in question, the statute, Chap. 194, Laws 1935, providing for the adjustment and payment of delinquent taxes read, in part, as follows:

“Section 1. Any person having delinquent taxes charged against him or against his property may apply to the Board of County Commissioners of the County wherein such taxes are payable to adjust and pay such taxes as follows: The application shall be in writing executed in triplicate and shall show:

“(1) The full name and address of the applicant.

“(2) A legal description of all property against which said taxes are a lien or charge.

“(3) An itemized statement of such taxes and the total amount thereof including interest, penalty and costs, if any.

“(4) That there is no Tax Sale Certificate covering any of said taxes outstanding and held other than by the County.

“(5) That the applicant has deposited with the County Treasurer sufficient money to pay the first installment of taxes assessed against applicant and said property in the year 1934, and due and payable May 1st, 1935, but not yet delinquent, but if the first installment be not paid before May 1st, that the applicant has deposited all taxes due and payable in 1935, such deposit to become payment on acceptance of the application.

“(6) That the applicant contracts and agrees to pay all prior and delinquent taxes in ten (10) equal annual designated payments beginning one year after the acceptance of the application and agrees that the lien of such taxes and the obligation of applicant to pay same shall not cease or terminate unless or until applicant shall make each and all of such ten (10) annual payments as contracted.

“(7) That the applicant specifically waives notice of nonpayment of any installment or installments due under the contract entered into and consents that the County Treasurer may proceed to collect all taxes unpaid under said contract, without notice of termination of the contract.

“Section 3. On receipt of an approved triplicate application the County Treasurer shall receive the money on deposit with him as payment of the current taxes and issue receipt therefor with proper indorsements thereon referring to the prior unpaid taxes and the applicants contract and said receipt so issued by the County Treasurer shall not be a bar to the collection of any of said prior taxes. But all proceedings to collect such prior taxes shall be stayed unless and until the applicant shall fail to make one or more of the contract payments when due. In case of a default of any one or more installments on the day when such installment becomes (sic) due then the County Treasurer, without notice of any kind as to the delinquency in the payment of such installment or installments shall proceed to collect all of such unpaid delinquent tax as though no contract had ever been made hereunder.”

We first consider the contention that the county having issued tax receipts which recited the payment of the 1930 taxes is precluded from asserting any right or title under the tax sale certificate. This argument is premised upon counsel’s construction of section 6766, Revised Code 191.9, SDC 57.1009, which read as follows:

“The county treasurer in collecting taxes shall collect the oldest tax first, and shall in no case issue his receipt for the current year until all prior taxes are paid. The possession of a tax receipt issued by the county treasurer shall be...