Parker v. Norton

• Citation: 26 N.W.2d 453,71 S.D. 506
• Decision Date: 05 March 1947
• Docket Number: 8861.
• Parties: PARKER v. NORTON et al.
• Court: Supreme Court of South Dakota

26 N.W.2d 453

71 S.D. 506

PARKER v. NORTON et al.

No. 8861.

Supreme Court of South Dakota

March 5, 1947

Rehearing Denied May 5, 1947.

C. M. Parsons, of Bison, and J. O. Wigen, of Hettinger, N. D., for defendants and appellants.

Frank P. Kinney, of Lemmon, for plaintiff and respondent.

ROBERTS Judge.

This is an action to quiet title. Plaintiff's grantors are the heirs of Grover Cleveland Stolzenberg, deceased. Defendant Alex Norton claims title under a tax deed issued by the county treasurer of Perkins county. The issues were submitted to the court and the court found that valid notices of intention to take tax deed were not given as required by statute; that by reason thereof the tax deed issued to defendant Norton is invalid; and that title should be quieted in the plaintiff.

The controlling questions on this appeal are whether the statute required service of notices of intention to take tax deed upon the heirs of the deceased owner of record and whether the court correctly determined the amount to be paid by plaintiff to defendant Norton if plaintiff is entitled to redeem.

The taxes assessed for the year 1930 against the two quarter sections involved became delinquent, the tracts were advertised and sold at the tax sale held on December 21, 1931, and there being no other bidders, tax sale certificates were duly and regularly issued to Perkins county. Grover Cleveland Stolzenberg was deceased at the time of the service of the notices of intention to take tax deed in November, 1937. He was the last grantee named in the chain of title. The notices are addressed to 'Andrew Stolzenberg and Robert Stolzenberg, sons and sole heirs at law of Grover C.

Stolzenberg deceased, owner of record and person in whose name land is taxed. And to all persons unknown who have or claim to have any interest or estate in or lien or encumbrance upon the premises hereinafter described as heirs, legatees, executors administrators or creditors of the estate of Grover C Stolzenberg, deceased, or any or either of them and all to whom it may concern' and to 'Henry G. Stolzenberg, Active Administrator and person in possession.' The treasurer's affidavits of completed service show that the notices were served upon the administrator, but were not served upon the heirs named either personally or by publication.

Counsel for defendant Norton contend that the provisions of SDC 57.1119 relating to tax deed procedure, were complied with when service was made upon the administrator of the estate of Grover Cleveland Stolzenberg, deceased. This statute provides that if the owner of record or any other person on whom notice is required to be served is deceased 'the notice shall be served on his executor or administrator, foreign or resident, or upon the resident agent of a foreign executor or administrator, if any of such are known to the certificate holder.' This section changed somewhat the requirements as to the service of notice of intention to take tax deed. The statute in effect at the time the notices in the instant case were given was Ch. 248, Laws 1937, amending § 6804, Rev.Code 1919, as amended by Ch. 198, Laws 1933, and Ch. 195, Laws 1935. The 1937 amendment so far as here applicable provided: 'If real property sold for taxes be not redeemed within four years from the date of sale, at any time thereafter and within six years from the date of the tax sale certificate on which the proceedings are based, the lawful holder of such certificate shall cause a notice to be served upon the owner of record of the real property so sold, upon the person in possession thereof, and also upon the person in whose name the same is taxed and upon the mortgages (mortgagee) named in any unsatisfied mortgage then in force upon such real property of record in the office of the Register of Deeds of the county in which the same is located * * *. Personal service of such notice in the manner provided by law for the service of summons shall be made upon such of the above mentioned persons as reside within the state, but when any of such persons are non-residents of the state, such notice may be served upon such non-residents by publishing such notice once a week for three successive weeks in some newspaper printed in the county where the real property is situated, and if no newspaper is printed in such county, in the nearest legal newspaper printed in the State, and in addition to such service by publication the holder of such certificate shall cause to be sent to the persons so served a true copy of such notice through the United States mails, properly addressed, to the last known address of each of such persons * * * Provided, however, that in the event any of the foregoing persons upon whom notice is required to be served are...