Rochford v. Fleming

• Decision Date: 12 May 1897
• Citation: 71 N.W. 317,10 S.D. 24
• Parties: ROCHFORD v. FLEMING, Treasurer, et al.
• Court: South Dakota Supreme Court

71 N.W. 317

10 S.D. 24

ROCHFORD v. FLEMING, Treasurer, et al.

Supreme Court of South Dakota

May 12, 1897

Appeal from circuit court, Minnehaha county; Joseph W. Jones, Judge.

Action by G. E. Rochford against John Fleming, treasurer of Lake county, and others, to quiet title. Judgment for defendants and plaintiff appeals. Reversed.

Joe Kirby, for appellant. Oscar O. Murray, for respondents.

CORSON P. J.

This was an action by the plaintiff, who was the owner of lot 10 in block 20 of the original plat of the city of Madison, to quiet his title thereto. The case was tried by the court, and it found that plaintiff was the owner of the said lot, but further found that Lake county had a lien thereon for the taxes for the years 1890, 1891, and 1892, and that there was due said county $649.03 for the taxes of these years, and for which sum judgment was entered in favor of the county against the plaintiff. From this judgment the plaintiff appeals.

The only contention of appellant is that the conclusions of law and the judgment are not sustained by the findings. To properly understand the questions presented for the decision of the court, a brief statement of the facts found by the trial court will be necessary: For the year 1890 there was levied upon lots 10 and 11, block 20,--the two lots being assessed together,--$154.69; for the year 1891, on the same two lots, $142.10; and for the year 1892 there was levied upon lot 10, $140.60. There was also levied for the years 1889, 1890, 1891, and 1892 a large sum of taxes upon the personal property of the stockholders of the Citizens' Bank of South Dakota. On November 6, 1893, these two lots were sold by the county treasurer of Lake county for the real property tax of the three years mentioned, and also for the personal property taxes assessed against the stockholders of said bank, amounting in all to the sum of $2,063.62; and said lots were bid in by said Lake county. In November, 1893, said lot 10 was sold under a foreclosure of a mortgage executed by Henry Smith and his wife, Emily J. Smith, in 1887. In January, 1894, the plaintiff became the owner of the certificate of sale by purchase, and in November, 1894 received a sheriff's deed in due form. As to plaintiff's payment of taxes, the court finds as follows:

"That on the 19th day of June, 1894, the said plaintiff did apply to the then treasurer of Lake county for the purpose of paying the taxes assessed and chargeable against said lot 10 aforesaid, and that for said purpose did pay to the treasurer of Lake county the sum of one hundred forty and 45/100 dollars, and the treasurer did thereupon make out duplicate receipts for the said sum for payment of all taxes assessed for the year 1893 upon said property, one of which he delivered to this plaintiff, and which receipt is in the following form, to wit:

'Treasurer's Office, Lake County, South Dakota. Madison, June 19th, 1894. Received of G. E. Rochford one hundred forty and 45/100 dollars in full of the following named tax for the year 1893, upon the following described property, to wit:

Description Value. Total Tax.

Lot 10 block 20, city of Madison . $3,700 00 $140 45

Sold for taxes year 1893. [Signed] Joseph Muggli, County Treasurer.'

That thereafter, about the 5th day of July, 1895, the said plaintiff did likewise pay to the said county treasurer the sum of one hundred fourteen and 25/100 dollars for the payment of taxes chargeable on said lot, and did receive a receipt therefor in full for tax for the year 1894, which receipt is in the same form as the one mentioned in the preceding paragraph, except as to year. That each of said tax receipts were issued by the county treasurer without the taxpayer making or filing any affidavit stating that he had a legal defense to the collection of any former tax, and that the making of such affidavit is not noted on any of said receipts."

And the court thereupon concludes as matter of law: "That the plaintiff is the owner in fee simple of the property described in the complaint. That the purported sale of said property made by the treasurer of Lake county on November 6 1893, is void, and of no force and effect. That the receipts issued by the county treasurer on June 19, 1894, for the tax of 1893, and the receipts issued on July 5, 1895, for tax for the year 1894 is not conclusive evidence that the prior taxes had been paid. That the land in controversy is liable for the tax assessed thereon for the years 1890, 1891, and 1892, and that the plaintiff is entitled to redemption from said tax on payment of the same, with interest thereon at twelve per cent., amounting to the sum of six hundred forty-nine and 3/100 dollars. That said Lake county has a lien upon said property prior and paramount to the rights of the plaintiff therein for the amount of...