Union Cent. Life Ins. Co. v. Hoilien, 7295.
| Decision Date | 08 September 1932 |
| Docket Number | No. 7295.,7295. |
| Citation | 244 N.W. 116,60 S.D. 183 |
| Parties | UNION CENTRAL LIFE INS. CO. v. HOILIEN, County Treasurer, et al. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Brown County; Van Buren Perry, Judge.
Action by the Union Central Life Insurance Company against Hans E. Hoilien, as Treasurer of Brown County and another. From an order sustaining a demurrer to the complaint, plaintiff appeals.
Affirmed.
Wallace E. Purdy, of Brookings, for appellant.
Max Stokes, of Aberdeen, for respondents.
Plaintiff appeals from an order sustaining a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.
The complaint alleges that the plaintiff acquired a mortgage on a quarter section of land described therein; that the defendant Webster claims to be the owner of a tax sale certificate issued by the county treasurer of Brown county upon the tax sale held on December 10, 1928; that the sixth installment of a drainage assessment upon which the sale was made was levied against the premises upon which the plaintiff acquired the mortgage; that subsequently the plaintiff paid drainage assessments and holds tax receipts issued by the county treasurer of Brown county showing payment by the plaintiff of the seventh, eighth, and ninth installments of the drainage assessment chargeable against the premises in question; and that the receipts issued to the plaintiff contained no notation that the sixth installment or other tax was due or unpaid. The relief demanded is that the county treasurer and his successors in office be enjoined and restrained from issuing a tax deed to defendant Webster, and that the said Webster be declared to have no right, title, or interest in the premises by virtue of the tax sale certificate issued to him.
The sole question presented on the appeal is whether or not the tax receipts issued to the plaintiff in the usual form without mention or notation of prior unpaid taxes preclude defendant Webster from asserting any right or interest under the tax sale certificate.
The drainage statute provides that sections 6760 to 6808, inclusive, R. C. 1919, shall apply to the enforcement of drainage assessments so far as such provisions are applicable, “except that a treasurer's deed issued upon a delinquent drainage assessment shall recite the fact that the title conveyed is subject to all the claims which the state or any political subdivision thereof may have thereon for annual taxes.” Section 8464, R. C. 1919.
Section 6766, R. C. 1919, provides that a tax receipt shall be conclusive evidence of the payment of all prior taxes against the land described in the receipt and shall constitute a bar to the collection of prior taxes against the land, unless otherwise stated in the receipt. It is also made the duty of the county treasurer to collect the oldest tax first, and the section expressly forbids the county treasurer to issue his receipt for the current year until all prior taxes have been paid. The tax sale certificate was issued to defendant Webster prior to the payment of the three annual installments by plaintiff, and, if the sixth annual installment upon which tax sale certificate issued to Webster constitutes a prior tax chargeable against the land in question the receipts issued to the plaintiff would constitute a bar to its collection.
Sections 6790 and 6795, R. C. 1919, provide:
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