Rector & Wilhelmy Co. v. Maloney

• Decision Date: 31 December 1901
• Citation: 88 N.W. 575,15 S.D. 271
• Parties: RECTOR & WILHELMY COMPANY, Plaintiff and respondent, v. RICHARD M. MALONEY, Defendant and appellant.
• Court: South Dakota Supreme Court

15 S.D. 271, 88 N.W. 575 (1901)

RECTOR & WILHELMY COMPANY,

Plaintiff and respondent,

v.RICHARD M. MALONEY,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Lawrence County, SD

Hon. Joseph B. Moore, Judge

Affirmed

Temple & McLaughlin

Attorneys for appellant.

John R. Wilson, Rice & Polley

Attorneys for respondent.

Opinion filed December 31, 1901

FULLER, P. J.

Conditioned on the payment of all taxes, penalties, interest, and costs, plaintiff had judgment vacating and setting aside a tax deed to a portion of a certain lot in the city of Deadwood, and this appeal by the defendant requires us to determine whether the law was properly applied to the facts found by the trial court.

On the 6th day of November, 1893, the property was sold to Lawrence county on account of the taxes due and delinquent for the years 1886 and 1892, and the certificate of such sale was thereafter assigned to appellant, who obtained his tax deed thereon, on the 15th day of June, 1896. Concerning this conveyance the court found that said deed was in all respects according to the form of tax deed provided by section 1639 of the Compiled Laws of this state, except that the following language provided in said form was omitted from said deed, to-wit, “and had been duly assessed and properly charged on the tax books or duplicate for the year.” At the time the taxes were assessed for the year 1886 the property stood in the name of Nathan Frank, and in 1892 in the name of Sarah J. Hickok; but before the statutory notice required before the issuance of a tax deed was in any manner served, appellant had acquired title to the westerly five feet of the lot, while the easterly twenty feet thereof, being the premises in controversy, belonged to A. T. Rector, whose deed was of record, and to these respective owners the property was, and for, many years prior thereto had been, assessed, as shown by the tax records of the county. Notwithstanding the fact that appellant knew, or ought to have known, that Rector was the non-resident owner of the premises, and that the person in possession thereof was not the tenant of such owner, he addressed his published notice of the expiration of the redemption period “to whom it may concern,” and the name of A. T. Rector in no manner appears therein. Section 121, C. 14, Sess. Laws 1891, is as follows:

“If no person shall redeem lands sold for taxes within two years from the date of sale, at the end of said two years the lawful holder of the certificate of purchase shall cause a notice to be served upon the owner of the land so sold, or upon the person in possession of such land or town lot unredeemed and also upon the person in whose name the land is taxed, if such person reside in the county where the property is situated, in the manner provided by law for the service of summons signed by him, his agent or attorney, stating the date of sale, the description of the property sold, the name of the purchaser and assignee, if any, and that the right of redemption will expire and a deed for said land or lot be made within sixty days from the completed service thereof. Service may be made upon non-residents of the county by publishing the same three times in some newspaper printed in said county, and if no newspaper is printed in said county, then and in that case in the nearest newspaper published in the state. Service shall be deemed complete when an affidavit of the service of said notice and of the particular mode thereof duly signed and verified by the holder of the certificate of purchase, his agent or attorney, shall have been filed with the treasurer authorized to execute the tax deed.”

It affirmatively appears that this notice was personally served upon the person in possession and on Mrs. Martha Bullock, apparently a perfect stranger, by one W. E. Waters, who is in no manner represented as the agent or attorney of appellant, and an affidavit of such service is made by one of appellant’s attorneys of record. As the service must be in the manner provided by law for the service of a summons, signed by the lawful holder of the certificate of purchase, his agent or attorney, and is complete only when an affidavit of service of said notice and of the particular mode thereof, duly signed and verified by the holder of the certificate of...