Peters v. Lohr
| Decision Date | 26 January 1910 |
| Citation | 124 N.W. 853,24 S.D. 605 |
| Parties | PETERS v. LOHR et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Hamlin County.
Action by James W. S. Peters against Mary V. Lohr and others. From a judgment for plaintiff and an order denying a new trial defendants appeal. Reversed and remanded.
Cheever & Cheever and F. W. Lohr, for appellants.
Case & Shurtleff, for respondent.
The plaintiff alleges that he is the owner in fee of a certain parcel of real estate situated in Hamlin county. That defendant claims an interest therein adverse to plaintiff under and by virtue of a tax deed, which plaintiff alleges was wrongfully and unlawfully issued by the treasurer of said Hamlin county. The complaint alleges various irregularities in the assessment and tax sale under which said deed was issued. Plaintiff demanded judgment that defendant be required to set forth his claim of title to said premises and that said tax deed be decreed by the court to be null and void, and that the same be canceled of record, and that plaintiff's title be quieted. Defendant answered admitting that he claimed fee title, and alleged that defendant was in possession of said land, and also alleged that the statute under which the action is brought is in contravention of the federal and state Constitutions, and demanded that plaintiff be granted no relief, and that the tax deed be declared to be a good and valid instrument, and that plaintiff be divested of all right, title, and interest in and to said premises. Findings and judgment were in favor of plaintiff, and the defendant appeals from such judgment.
It is first contended by defendant that the court erred in not granting defendant's request for a trial by jury, but we are of the opinion that such contention is not tenable. The procedure in this state to determine adverse title, and to obtain possession of real estate in the possession of another, is a combination of both law and chancery procedure, as practiced under the rules of the common law. In all those cases where the action is possessory only, brought for the purpose of obtaining possession of real property, in substance the same as common-law ejectment, both parties, as a matter of right, are entitled to trial by jury. In all those cases which at common law came on the equity or chancery side of the court, such as actions to quiet title and cancel instruments, where the equity power of the court was invoked as the principle of primary cause of action, neither party is entitled to trial by jury as a matter of right. Reichelt v. Perry, 15 S.D. 601, 91 N.W. 459. Burleigh v. Hecht, 117 N.W. 367; Thomas v. Ryan, 123 N.W. 68. The case at bar is equitable purely, brought to quiet title and to cancel a tax deed on account of alleged irregularity, and possession is not demanded by either party.
Defendants claim to be the owners of said real estate under a tax deed. The plaintiff seeks to have this tax deed vacated and canceled, and has offered evidence attacking the regularity of said deed in two particulars. First, plaintiff claims that said deed is void because the assessor's return was not sworn to by the assessor, as required by section 2102, Pol. Code; second, that the notice of tax sale was insufficient in that no dollar sign ($) precedes the figures representing the amount of taxes due. But we are of the opinion that the cases of Avant v. Flynn, 2 S. D. 153, 49 N.W. 15, and Bandow v. Wolven, 20 S.D. 445, 107 N.W. 204, have decided these questions adversely to respondent's contention. In Bandow v. Wolven it appeared that the assessor had omitted to sign the oath, but the county auditor's certificate was annexed, reciting that the assessor had subscribed and sworn to the written oath or affidavit before him, and the court held that the presumption was that the oath had been administered, but that the assessor had neglected to sign the same, but which did not render the assessment void. In the case at bar the assessor signed the affidavit, and the auditor's certificate reads as follows: -but the auditor's signature and seal are lacking.
This was the situation in Avant v. Flynn, and the court in rendering that opinion said: In both these cases cited there was oral testimony showing that the assessor had in fact taken the oath. In this case we are of the opinion, in the absence of testimony to the contrary that the presumption is that the assessor did take the oath, and that the auditor negligently omitted to sign and affix his seal to the certificate. The respondent had the burden of showing that no such oath was in fact taken. The plaintiff is the one who has attacked the legality of the tax deed, and the burden is on him to show that no oath was taken by the...
To continue reading
Request your trial