Parrish v. Duncan

• Decision Date: 06 November 1947
• Docket Number: 8932.
• Citation: 29 N.W.2d 487,72 S.D. 56
• Parties: PARRISH et al. v. DUNCAN et al.
• Court: South Dakota Supreme Court

29 N.W.2d 487

72 S.D. 56

PARRISH et al. v. DUNCAN et al.

No. 8932.

Supreme Court of South Dakota

November 6, 1947

H. R. Jackson, of Lemmon, for defendant and appellant Alfred S. tubbs.

F J. Reeder, of Lemmon, for plaintiffs and respondents.

Leslie Hersrud, State's Atty., of Lemmon, for defendant and respondent Perkins County.

SICKEL Presiding Judge.

This action was brought by Luther C. Parrish and Bertha Parrish plaintiffs, for the purpose of determining adverse claims to two lots in the City of Lemmon, Perkins county. Alfred S Tubbs, one of the defendants, filed an answer containing a cross complaint, in which he alleged that he was the owner of the lots and that plaintiffs' claim of title is based upon a tax deed issued to Perkins county, the other defendant, and that conveyance was made by the county to plaintiffs. The defendant Tubbs alleges that the tax deed is void and tenders in his cross complaint the 'amount of real estate taxes, penalty and interest unpaid against said land, or the amount paid or agreed to be paid by plaintiffs to the county (for the lots), whichever is less,' and he asks judgment quieting title in himself. Plaintiffs answered this cross complaint with a general denial, and alleged a conveyance to them by Perkins county for a consideration of $40 per lot. Perkins county answered the cross complaint of defendant Tubbs alleging that it acquired title to the lots by tax deed and then conveyed them to plaintiffs. The county further alleged that the unpaid taxes on said lots, with penalty and interest from 1911, amounted to $390.08 and claimed a lien for said amount in case the tax deed should be set aside. The action was tried, and the circuit court decided that the tax deed was void; that the defendant Tubbs was the owner of the lots; that the consideration paid by the plaintiffs to the county for the lots was $80; that the amount of unpaid taxes, penalty and interest on the lots amounted to $390.08; that as a condition to the entry of judgment quieting title in defendant Tubbs, the said defendant be required to pay Perkins county the said sum of $390.08, and that failing such redemption within thirty days, title should be vested in plaintiffs. Then the plaintiffs and defendants Tubbs and Perkins county filed a stipulation which recited the contention of Tubbs that he was obligated to pay only the sum of $80; that Tubbs did not propose to redeem by payment of the amount required by the court's decision, and that judgment be entered quieting title in plaintiffs, without prejudice to the rights of defendant Tubbs to appeal. Decree was then entered according to the findings, conclusions and stipulation, and defendant Tubbs appealed.

Appellant contends that he has no obligation to pay the $390.08 in taxes due to the county; that his sole obligation is to reimburse the purchasers for the sum paid by them to the county for the lots, amounting to $80 with interest at six per cent from the date of payment. This contention seems to require some further consideration of the rights and relationships of the parties, and the procedure in these matters.

'It is ordinarily a condition precedent to the right to maintain a suit to quiet title and cancel a tax deed that plaintiff first pay or tender the tax title claimant reimbursement for the amount expended by him for taxes, interest, and penalty, the doctrine resting upon the equitable principle that he who seeks equity must do equity * * *.' 61 C.J., Taxation, § 2008. This rule is supported by statute with some variations and additions. SDC 57.0902. This statute requires that the person seeking relief of this kind must plead any invalidity of the tax which he claims goes to its base or legal existence, and he must state in his pleadings the amount of the tax if any, which he concedes to be due. He is obligated to tender the latter amount only, in his pleadings. If an opposing party who claims an interest in the tax or the property accepts all or part of the amount so tendered, the person seeking relief must deposit the amount so accepted in the office of the county treasurer within ten days to be held subject to the final judgment of the court. The court next determines any questions of invalidity which may be presented by the pleadings. If there are disputed taxes and if such disputed taxes are found to be legal, the court orders the deposit of the amount due. If any disputed taxes are found to be invalid for any of the reasons stated in the statute, the court may order a reassessment, recalculation, or any other correction necessary to establish valid taxes to replace those found to be invalid, and then directs the deposit of a sum sufficient to pay them. Failure to make the deposit as ordered by the court is ground for dismissal of the action on the merits as against the party seeking to set aside the tax title. If the required deposit has been made, the action proceeds to trial and decision on the merits. Deposit of the taxes due the county is made a condition precedent to a judgment setting aside the tax deed. The statute also provides that the court shall 'adjudge that such county pay to the parties entitled thereto such sum as it may find to be due, which sum shall not in any event exceed the amount which the county may have originally received from the tax collection or proceeding and six per cent interest thereon from such date.' SDC 57.0902.

Appellant has conceded in this case that all taxes on these lots from 1911 to 1945, inclusive, are valid, and are due with interest and penalties amounting in all to $390.08.

This court said in the case of Clark v. Darlington, 11 S.D. 418, 78 N.W 997, 998: 'It...