Moran v. Thomas

• Decision Date: 06 July 1905
• Citation: 19 S.D. 469,104 N.W. 212
• Parties: MORAN v. THOMAS et al.
• Court: South Dakota Supreme Court

19 S.D. 469

104 N.W. 212

MORAN

v.THOMAS et al.

Supreme Court of South Dakota.

July 6, 1905.

Appeal from Circuit Court, Codington County.

Action by John B. Moran against W. R. Thomas and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Fuller, J., dissenting.D. C. & W. R. Thomas, for appellants. H. H. Potter and I. O. Curtiss, for respondent.

HANEY, J.

This is an action to determine adverse claims to certain real property. The appeal is from an order denying defendants' application for a new trial. The plaintiff owns the property in controversy unless it was transferred to the defendants by certain tax deeds, recorded more than three years prior to the commencement of this suit. The learned circuit court found that the only attempted description of the property in the assessor's book or list was as follows: “S. 2, N. E. 4, and S. E. 4 N. W. 4 Sec. 29, township 118, range 54,” and concluded that each of the tax deeds was void because neither was based on a valid assessment. The description is clearly defective under the former decisions of this court. Turner v. Hand Co., 11 S. D. 348, 77 N. W. 589;Stokes v. Allen, 15 S. D. 421, 89 N. W. 1023. This is practically conceded by the defendants, but they contend that the plaintiff is precluded from showing the defect because their deeds were recorded more than three years before this action was commenced. In the absence of any statement as to when the action was begun, it will be assumed that the following provisions of the statute were then in force: “No action shall be commenced by the former owner or owners of lands, or by any person claiming under him or them to recover possession of land which has been sold and conveyed by deed for nonpayment of taxes, or to avoid such deed, unless such action shall be commenced within three years after the recording of such deed, and not until all taxes, interests and penalties, legal costs and expenses shall be paid or tendered by the parties commencing such action. And whenever in any action at law or in equity, the validity of any tax sale certificate, or tax deed, arises upon the pleadings or otherwise, except where the property sold was not taxable, where the tax was for an illegal purpose, or where the tax was in fact paid before the sale occurred, such action shall not proceed in favor of the party assailing such certificate or deed, unless he shall within such time as the court shall deem reasonable deposit in court, for the benefit of the party claiming thereunder, an amount equal to the sum required by law to redeem from the tax sale or sales involved, together with the costs and disbursements of the action then incurred by the party claiming under such certificate or deed.” Rev. Pol. Code, § 2214. Special statutes, such as this, fixing a shorter period of limitations than that controlling other cases for attacking tax proceedings have been enacted in many states. 27 Am. & Eng. Ency. 985. “As a rule, these statutes reach only those defects which do not go to the absence of authority to sell or convey. They do not operate to cure jurisdictional defects, or to validate titles which are void for want of power to sell the property, as where there was no assessment, levy, or sale where the land was not subject to taxation, or where the taxes had been paid before the sale; and defects which go to the fraud of the parties are not within their operation.” Id. 987. It requires no argument to show that the mere recording of an instrument in the form prescribed for tax deeds would not of itself cause the running of the statute. No one would contend that a forged deed would have that effect. A line must therefore be drawn between those cases which fall within and those which fall without the special limitation. The statute by its terms applies only where land “has been sold and conveyed by deed for nonpayment of taxes.” Land cannot be sold for nonpayment of taxes which do not exist. Without an assessment there can be no tax. “Of the necessity of an assessment no question can be made. Taxes by valuation cannot be apportioned without it. Moreover, it is the first step in the proceedings against the individual subjects of taxation, and is the foundation of all which follow it. Without an assessment they can have no support, and are worthless.” Cooley on Tax. (1st Ed.) 259. “An assessment is in the broadest sense a jurisdictional requirement. It is the groundwork of all subsequent tax proceedings. Without it, no taxing officer has jurisdiction to proceed further. The Legislature cannot dispense with it, or fix its basis. These matters are grounded in the Constitution. Its absence is not a mere irregularity.” Roberts v. Bank (N. D.) 79 N. W. 1049. All real and personal...