Northwestern Mortg. Trust Co. v. Levtzow
| Decision Date | 03 September 1909 |
| Citation | 122 N.W. 600,23 S.D. 562 |
| Parties | NORTHWESTERN MORTGAGE TRUST CO. v. LEVTZOW ET AL. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Hand County.
Action by the Northwestern Mortgage Trust Company against Henry Levtzow and another. From a judgment for defendants plaintiff appeals. Affirmed.
Sterling & Clark, for appellant.
Frank Turner, for respondents.
This is an action to quiet title by the owner of the fee as against a tax deed. Defendants claim title through a tax deed issued on the 2d day of August, 1897, to one Blackman, for the land in question which is situated in Hand county. This action was commenced on the 25th day of July, 1906. The defendants after pleading title under the Blackman tax deed, also, among other things, pleaded the three-year statute of limitations provided for by section 2214, Rev. Pol. Code. A careful examination of the record discloses no jurisdictional defect in the tax procedure preceding the tax sale and issuance of said tax deed, which deed is fair on its face. The facts in this case are very similar to those in the case of Bandow v. Wolven, 20 S.D. 445, 107 N.W. 204, and this case must be governed by that decision. The three-year statute of limitations is a complete bar to this action.
On the face of the tax deed offered in evidence certain words constituting a clause, appear to have been erased by the drawing of a pen lengthwise through such words. It is contended by appellant that from the fact of this erasure so appearing on the face of said tax deed that it renders said tax deed suspicious, and casts the burden of proof on respondents to show the time when and the circumstances how such erasure came to exist. It has heretofore been held by this court that, in the absence of other evidence to the contrary, such an erasure is presumed to have been made prior to or contemporaneous with the execution of the instrument. Moddie v. Breiland, 9 S. D. 506, 70 N.W. 637; Bank v. Feeney, 12 S.D. 156, 80 N.W. 186, 46 L. R. A. 732, 76 Am. St. Rep. 594; Cosgrove v. Fanebust, 10 S.D. 213, 72 N.W. 469. And this presumption is stronger where the instrument is the act of a public officer who is presumed to act lawfully and do his duty, and who has no personal interest in the transaction. 2 Cyc. 242. There is no evidence in the record that would disturb or change this presumption.
The appellant also contends that the tax deed is irregular and void because not in the statutory form prescribed by section 2213, Rev. ...
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