Read v. Jerauld County

• Citation: 17 N.W.2d 269,70 S.D. 298
• Decision Date: 12 January 1945
• Docket Number: 8740
• Parties: ELBERT A. READ, Respondent, v. JERAULD COUNTY, et al., Appellants.
• Court: Supreme Court of South Dakota

70 SD 298, 17 NW2d 269 (1945)

ELBERT A. READ,

Respondent,

v. JERAULD COUNTY, et al.,

Appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Jerauld County, SD

Hon. R. C. Bakewell, Judge

#8740—Affirmed

Chas. R. Hatch, Wessington Springs, SD

Attorney for Appellants.

Royhl & Longstaff, Huron, SD

Attorneys for Respondent.

Opinion Filed Jan 12, 1945

ROBERTS, Judge.

Plaintiff was the owner of a quarter section of land in Jerauld County, which was sold on December 21, 1931, for delinquent taxes. The statutory right of redemption was not exercised and as a result the county treasurer issued to Jerauld County a tax deed dated June 4, 1938. Upon tender of the full amount of taxes and costs included in the tax sale certificate and of subsequent taxes levied and assessed, plaintiff demanded of the county a conveyance by quit claim deed of the title acquired by the county. He asserted that right under the provisions of Chapter 46, Laws 1943. The board of county commissioners at its meeting on September 7, 1943, rejected the tender and demand to convey. After the foregoing proceedings plaintiff brought this action claiming a preferred right to purchase. Defendants answered denying such right. The case was submitted to the court upon a stipulation of facts. The court ruled that it was the mandatory duty of the county commissioners to authorize a conveyance and entered judgment accordingly.

It is contended by defendants that there is no mandatory obligation on the part of a county to convey to a former owner; that if the statute is mandatory it has no application after the expiration of the time within which claim to possession of real property sold for nonpayment of taxes may be asserted; and that the provisions of the 1943 law remitting penalty and interest are violative of the Constitution.

In 1939, the Legislature provided for conveyance of tax acquired property to former owners without the necessity of complying with the general provisions authorizing county commissioners to sell such property. The statute referred to, SDC 57.1125, contained these provisions:

“The county commissioners shall have authority to authorize a reconveyance by quit claim deed to the record owner only of any real estate held by the county under tax deed title only, without the necessity of any of the procedure required by section 57.1124 at any consideration not less than the total principal, interest, and costs of all taxes represented in the tax deed and any other taxes and interest which are unpaid upon said real estate. Nothing herein contained shall limit the discretion of the county commissioners to fix any higher price for such reconveyance or to annex to the reconveyance any such conditions or qualifications as they may decide.”

This section was amended by Chapter 292, Laws of 1943, by replacing the words “the record owner” with the words “the record owner or his assignees or successors.”

Chapter 46, Laws of 1943, reads as follows:

“The County Commissioners shall have authority to authorize a reconveyance by quit claim deed to the record owner or in case of his death, to his heirs, devisees and assigns of any real estate owned by the county, acquired through tax deed proceedings, without the necessity of complying with any of the requirements of the statutes ,relating to the sale of lands acquired by the county through tax. deed proceedings, upon the full payment or tender of the principal of the taxes and costs included in the tax certificate of sale, together with the principal of subsequent taxes levied and assessed upon such real estate, together with interest and penalty on any such taxes of the year 1941 , which became due and payable during the year 1942, and on any such taxes of the year 1942 which became due and payable during the year 1943, and costs, at any time prior to September 30th, 1943. The conveyances shall be made by quit claim deed substantially in the form provided by Section 51.1403 of the South Dakota Code of 1939 and pursuant to a resolution of the Board of County Commissioners published in their minutes. The quit claim deed shall be executed by the treasurer and attested by the auditor under seal, and shall have effect only of releasing the title and claim, which the county and taxing districts represented by the same have under the tax deed.”

When land is sold for taxes and a tax sale certificate is issued to a private purchaser the taxes are paid and the state and the local taxing districts hold no liens thereafter for the payment of taxes. The sale of land to a county is merely a process of enforcing the collection of taxes. The taxes remain unpaid until redemption is made, the certificate is assigned or the land is sold .by the county after title is acquired by tax deed. Brink v. Dann et al., 33 SD 81, 144 NW 734; Hughes County v. Henry, 48 SD 98, 202 NW 286; Union Central Life Ins. Co. v. Hoilien, 60 SD 183, 244 NW 116. There is no merit in the contention of the defendants that the expiration of the three-year statute of limitations (SDC 57.0903, amended by Chap. 337, Laws of 1941) prevented the operation of the provisions governing sales to former owners. The legislature may regulate or change at any time the method of selling or disposing of properties to which counties have acquired title by tax proceedings.

It is argued that since the provisions of Chapter 46, supra, were permissive in...