Potts v. Miller
| Decision Date | 14 November 1949 |
| Docket Number | 9077. |
| Citation | 39 N.W.2d 667,73 S.D. 145 |
| Parties | POTTS v. MILLER et al. |
| Court | South Dakota Supreme Court |
[Copyrighted Material Omitted]
Byron S. Payne, Pierre, W. M. Potts, Mobridge Attorneys for appellant.
Morrison & Skaug, Mobridge, attorneys for respondent Miller.
N E. Wanous, State's Attorney, Dupree, attorney for respondent Ziebach County.
This is an action brought to quiet title to land in Ziebach county. The land was a part of the Standing Rock Indian Reservation and was purchased from the United States Government by plaintiff, on contract, in 1920. Patents were issued in October 1931. Some of the land was assessed for taxes in 1930 and sold to the county at the 1931 tax sale. The rest of the land involved in this action was assessed for taxes in 1932, and sold to the county at the 1933 tax sale. No redemptions were made and treasurer's tax deeds were issued and recorded in May 1938. The county sold the land to R. N. Miller on contract in December 1946. The county answered plaintiff's complaint alleging that it became the owner of the property by virtue of the tax deeds and that it was still the owner thereof subject to the rights of defendant R. N. Miller under his contract of purchase. Defendant Miller answered alleging his interest in the property under his contract with the county and also alleging that the tax deeds had been recorded in the office of the register of deeds more than three years prior to the commencement of the action and asked for judgment quieting title in him as against the claims of the plaintiff. The action was tried on the merits and judgment was entered for defendants. Plaintiff appealed.
Appellant contends that the assessments of the land and the levies of the taxes are void because of departures from the statutory procedure; that the tax deeds do not follow the statutory form and are void, and that these defenses are therefore available to plaintiff notwithstanding the three-year statute of limitations.
The statute of limitations is SDC 57.0903 Ch. 337, S.L. of 1941. It declares that: 'No action shall be commenced by the former owner or by any person claiming under him, to recover possession of any real property 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 * * *.' This is a statute of repose. When a deed is fair on its face and has been recorded more than three years, no defects in the tax proceedings will be recognized except those which are jurisdictional. Bandow v. Wolven, 20 S.D. 445, 107 N.W. 204; Cain v. Ehrler, (on rehearing) 36 S.D. 127, 153 N.W. 941; Parker v. Norton, 71 S.D. 506, 26 N.W.2d 453; Hough v. Perkins County, 72 S.D. 236, 32 N.W.2d 632; Crilly v. Williams, 72 S.D. 423, 35 N.W.2d 401; Randall v. Perkins County, 72 S.D. 497, 36 N.W.2d 845. The first question, then, is whether the deeds involved in this action are fair on the face.
Revised Code of 1919, § 6805, now SDC 57.1120, relates to the form of tax deeds and provides: 'Such deed shall be prima facie evidence of the truth of all the facts therein recited, and of the regularity of all proceedings from the valuation of the land by the assessor up the execution of the deed, and such deed shall be substantially in the following form:
'Whereas, ..... did on the ... day ....., 19.., produce to the undersigned, ....., treasurer of the county of ....., in the state of South Dakota, a certificate of tax sale, bearing date the ... day of ....., 19.., (signed by ....., who at the last mentioned date was treasurer of said county, from which it appears that .....) did (on the ... day of ....., 19..,) purchase' etc.
The deeds followed the statute in form and execution except that the parts of the above quotation which we have placed in parentheses were omitted. Those parts of the statutory form which have been omitted require that the deeds shall state that the certificates of sale were signed by the treasurer of Ziebach county, naming him, the name of the purchaser, and the date of sale. The deeds recite elsewhere that Ziebach county was the purchaser at the sales and also state the dates of sale. They do not specifically state that the certificates of sale were issued by the treasurer of Ziebach county nor do they state the names of the treasurers who issued them. The deeds therefore show a departure from the statutory form and the question then is whether the deeds are void because of the omissions.
A tax deed is fair on its face when the illegality of the conveyance cannot be shown without extraneous evidence. Denny v. Stevens, 52 Wyo. 253, 73 P.2d 308, 75 P.2d 378, 113 A.L.R. 1337; North American Realty Co. v. Brady, 77 Colo, 56, 234 P. 1054; Imperial Securities Co. v. Morris, 57 Colo. 194, 141 P. 1160. This rule is, however, subject to the power of the court to read the deed in the light of existing law, and it is subject also to matters of which the court may properly take judicial notice. St. Louis Smelting and Refining Co. v. Kemp, 104 U.S. 636, 26 L.Ed. 875 .
These tax deeds are all regular in form except as to the omissions noted above. They were duly executed by a ministerial officer according to the authority vested in him by law. The deeds do not bear evidence of noncompliance with an essential element of the law. Such noncompliance could only be established by extraneous evidence. Therefore, the omission is insufficient to support the claim that the deeds are not fair on the face.
In support of his contention that the deeds are not fair on the face appellant cites Salmer v. Lathrop, 10 S.D. 216, 72 N.W. 570. In that case the tax deed recited that two lots were sold as one tract for a gross consideration, contrary to statute, and that the sale was held on a date not authorized by law. The deed bore evidence of noncompliance with the law and was held to be void on its face.
Appellant also cites Rector & Wilhelmy Co. v. Maloney, 15 S.D. 271, 88 N.W. 575, 576. The deed involved in that action followed the statutory form except that it omitted 'and had been duly assessed and properly charged on the tax books or duplicate for the year * * *'.
Jurisdictional matters are those which are required to prevent the owners from being deprived of their property without due process of law. They are, that the premises in question were not within the taxing district, or were not assessed, or were not subject to taxation, or that the taxes assessed thereon had been paid before sale, or that the property was redeemed from the sale before the issuance of the tax deed. Moran v. Thomas, 19 S.D. 469, 104 N.W. 212; Bandow v. Wolven, 20 S.D. 445, 107 N.W. 204; Cornelius v. Ferguson, 23 S.D. 187, 121 N.W. 91. Service of notice to redeem is also a jurisdictional matter. Parker v. Norton, supra; Randall v. Perkins County, supra. The deed involved in the Rector case failed to state that the property had been duly assessed, which recital was required by the statutory form of tax deed, and it was jurisdictional. This court has stated repeatedly that 'omissions from the statutory form relating to jurisdictional matters have been uniformly held sufficient to render the deed void upon its face.' Reckitt v. Knight, 16 S.D. 395, 92 N.W. 1077, 1078; Rector & Wilhelmy Co. v. Maloney, supra; Moran v. Thomas, supra; Cornelius v. Ferguson, supra.
In the present case that part of the statutory form which was omitted has no relation to any jurisdictional matter. We find no case in which this court has held that the omission of a nonjurisdictional recital renders the tax deed void on its face.
Appellant also contends that because of the omissions the deeds are not in the form required by statute, and that they are therefore void. He cites the following rule from Salmer v. Lathrop supra [10 S.D. 216, 72 N.W. 573]: 'Where the statute prescribes the particular form of a tax deed, the form becomes substance, and must be strictly pursued, or the deed will be void.' Appellant also quotes the following from Rector & Wilhelmy Co. v. Maloney, supra: 'When a form has been made necessary, it is not for the courts to inquire whether the required recitals are of material facts or otherwise.' The statute here in question states: 'Such deed shall be substantially in the following form: * * *'. To say that under this phraseology 'form becomes substance', that the statutory form must be strictly pursued regardless of materiality, is to ignore substance for the sake of form. Actually 'form' is the antithesis of 'substance'. Form relates to technical details regardless of substance while substance is that which is essential. Rose v. Osborne, 136 Me. 15, 1 A.2d 225. 'The words 'in substance' are used in opposition to form, and to signify that adherence to the form or language of the statute is not required if the real or essential part be observed and complied with.' Hugo v. Miller, 50 Minn. 105, 52 N.W. 381, 382. This question was considered by the Supreme Court of Illinois in the case of People v. Alton R. Co., 380 Ill. 380, 43 N.E.2d 964, 966. That was a tax case. The statute required that when taxes are paid under protest they shall be accompanied by a writing 'substantially in the following form:' The court said: ...
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