Sandys v. Robinson

• Decision Date: 12 October 1910
• Citation: 128 N.W. 484,26 S.D. 281
• Parties: SANDYS v. ROBINSON et al.
• Court: South Dakota Supreme Court

128 N.W. 484

26 S.D. 281

SANDYS v. ROBINSON et al.

Supreme Court of South Dakota

October 12, 1910

Appeal from Circuit Court, Pennington County.

Action to foreclose a mortgage by Lew W. Sandys against Lee Robinson and others. Judgment for defendants, and plaintiff appeals. Reversed.

Charles W. Brown and Sutherland & Payne, for appellant.

Schrader & Lewis and Lee Robinson, for respondents.

WHITING P. J.

This action was brought by the plaintiff to foreclose a mortgage on certain real estate in Pennington county. The mortgage and note thereby secured were given by the then owner of the land. Plaintiff alleged that defendant Robinson had, or claimed, some interest in the premises, but that whatever interest was held by him was subject to plaintiff's mortgage interest. Defendant, answering, by way of counterclaim, alleged that he claimed title in fee under and by virtue of tax sale, under the "Scavenger" tax law, made subsequent to the date of plaintiff's mortgage and defendant prayed that his title be quieted as against plaintiff's claim under his mortgage. The cause was tried to the court without a jury. Findings of fact and conclusions of law were entered in favor of defendant Robinson and decree entered thereon. Motion for new trial was denied, and plaintiff appealed to this court from the said decree and order denying a new trial.

The learned trial court found that plaintiff was not the owner of the note and mortgage sued upon, and several of appellant's assignments of error are based upon this branch of the case; but inasmuch as the ownership of the note and mortgage are immaterial, providing defendant acquired fee title, superior to any rights of the owner of such note and mortgage, through the tax proceedings, we will first consider such tax proceedings.

It appears beyond dispute that the taxes upon the land in question were delinquent for the year 1899 and several years prior thereto; that a tax certificate upon tax judgment sale under the so-called "Scavenger" tax law issued to one James R. Sharp, which certificate described the land in question, and which certificate was filed for record November 13, 1902. The court found that more than three years had elapsed since the recording of such certificate, and that the plaintiff was barred from questioning its validity by the statute of limitations. It is as grantee of Sharp that defendant Robinson claims, and his rights are based on such certificate. Appellant contends that the certificate upon sale is not in statutory form and therefore is void on its face, and in support thereof calls attention that the form of certificate required by statute gives date of certificate and date of sale, thus making, it is claimed, the correctness of these dates as given essential to validity of the certificate. The date of certificate is November 6th, and date of sale as named therein November 14th. The point thus made by appellant in his brief might have raised a serious question regarding the validity of such certificate providing such question had been timely raised. Respondent urges that the date "November 14th" is clearly a clerical error. We must conclude that a clerical error was made in one of these dates; but, no matter which date was error, the deed, corrected so as to give the correct date, would be valid on its face, as under the statute a valid sale can be held, under certain circumstances, after the first Monday in November. We are, however, relieved from difficulty by the condition of the record herein. Appellant objected to the introduction in evidence of the certificate, and his objections were overruled. Such objections, however, did not raise any question as to the correctness of these dates; the objection now relied upon being "that the same is not in statutory form, nor substantially in statutory form." This objection was certainly insufficient to call the court's attention to any errors in date, and the certificate was in the precise form prescribed by statute. While appellant, in his assignments of error, claimed the evidence insufficient to support the finding made by the court that every step necessary to vest title in Sharp was taken by the proper officers, and sets forth in great detail and explicitly the things wherein he claims such proceedings were defective, there is no specification in any manner alluding to the discrepancy in these dates. This matter never having been brought to the attention of the trial court by proper objection or assignment of error, cannot be considered by this court.

Appellant has raised several questions relating to the sufficiency of the proceedings leading up to the sale. It is not questioned however, but what the land in question was subject to taxation, was assessed for taxes for the years included in such sale, and that the taxes remained unpaid at time of sale. This being true, and more than two years having elapsed since date of sale, under section 18 of the said "Scavenger" tax law, being chapter 51 of the Session Laws for 1901, no action lies to question its validity. Bandow v. Wolven, 23 S.D. 124, 120 N.W. 881; Cornelius v. Ferguson, 23 S.D. 187, 121 N. w. 91. It is true that in Bandow v. Wolven and in the numerous other cases supporting the rule laid down therein, which have been decided by this court, the court was construing the statute of limitation applying to ordinary tax deeds; but there can be no difference in principle. Flickinger v. Cornwell, 22 S.D. 382, 117 N.W. 1039.

The only other question to be considered is as to whether such certificate was ever matured so as to give holder fee title or whether the holder thereof simply has a lien thereunder. This depends upon whether proper notice of the maturity of certificate was given and filed in office of clerk of circuit court of Pennington county before certificate was recorded in the office of the register of deeds of such county. Appellant contends that no notice...