Warren v. Blackman
| Decision Date | 26 October 1933 |
| Docket Number | 7508. |
| Parties | WARREN v. BLACKMAN et al. [a1] |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge.
Action by F. G. Warren against F. L. Blackman and others copartners, doing business under the firm name and style of Stadum Bros., the Western Surety Company, and others. From a judgment for plaintiff, the Western Surety Company appeals.
Affirmed.
Tom Kirby, of Sioux Falls, for appellant.
Boyce Warren & Fairbank, of Sioux Falls, for respondent.
Plaintiff brought this action to quiet title to certain premises situate in the city of Sioux Falls, asserting ownership under a tax deed issued by the treasurer of Minnehaha county pursuant to a tax sale held on December 16, 1929, for the unpaid general taxes for the year 1928. The defendant Western Surety Company became the assignee of four certificates of special assessment; two of the certificates for the construction of a curb and gutter are dated November 10 1928; and the other certificates for the construction of a sidewalk are dated November 15, 1928. Certified copies of the assessment rolls were filed in the office of the city treasurer on the dates that the certificates bear. The court found for the plaintiff, and expressly decreed that the assessment certificates "be and the same hereby are cancelled as liens upon said premises." The defendant Western Surety Company appeals.
It is urged by the appellant that, under section 6794, Rev. Code 1919, the special assessments evidenced by the certificates held by the appellant became a "subsequent tax," and that, when the county in May, 1932, made an assignment of the tax sale certificate to the grantors of the respondent, the special assessments should have been paid in full by the purchasers, and, although they were not paid under this section as a "subsequent tax," they continued as prior liens.
Section 6794, Rev. Code 1919, provides as follows: "The county treasurer is authorized at all tax sales made under the laws of this state, in case there are no other bidders offering the amount due, to bid off all or any real property offered at such sale for the amount of taxes, penalty, interest and costs due and unpaid thereon, in the name of the county in which the sale takes place, such county acquiring all the rights, both legal and equitable, that any purchaser could acquire by reason of such purchase: Provided, that whenever any county shall acquire an interest in real property, or any rights with respect thereto, by reason of the same having been bid off in the name of the county as herein provided, such real property shall not be again advertised and sold for delinquent taxes so long as the county retains its interest in and rights to such real property; and provided, further, that all taxes subsequently accruing against such real property, or that were unpaid at the time of such sale and a lien thereon but not included in such bid, shall be considered as 'subsequent tax,' and before the county can make an assignment of such interest in and rights to such real property, or before an assignment of the certificate of such sale is made, all such taxes must be paid in full, including the amount for which such real property was so bid off, unless a compromise thereof is made as permitted by law, in which case the amount at which such compromise is made must be paid."
Special assessments lawfully levied upon real property in any municipal corporation and general property taxes are by express provisions of statute made liens upon the property assessed. Sections 6403 and 6758, Rev. Code 1919. The lien in each instance is declared to be perpetual "against all persons or bodies corporate, except the United States and this state," but neither is expressly given precedence over the other.
It has been held in other jurisdictions that the lien for general taxes is of a distinctly higher order than the lien of a special assessment, and will be construed as prior in the absence of a plain legislative declaration to the contrary. 61 C. J. 932; In re Dancy Drainage Dist., 199 Wis. 85, 225 N.W. 873; Continental & Commercial Trust & Sav. Bank v. Werner, 36 Idaho, 601, 215 P. 458; State v. Board of County Com'rs, 89 Mont. 37, 296 P. 1; Missouri Real Estate & Loan Co. v. Burri, 202 Mo.App. 242, 216 S.W. 570; Iowa Securities Co. v. Barrett, 210 Iowa, 53, 230 N.W. 528; Minnesota v. Cent. Trust Co. (C. C. A.) 94 F. 244. This court in Hughes County v. Henry, 48 S.D. 98, 202 N.W. 286, 288, said: "It may be seriously questioned whether the Legislature could lawfully make the lien of taxes subordinate." "Taxes," as distinguished from special assessments, however, was not under consideration. But we need not consider the authority of the Legislature to provide that a lien of taxes for general governmental purposes shall be inferior to, or equal with, special assessments or the rule that, in the absence of statutory provision, the lien of a general tax is superior, for the statutes of this state at least by implication recognize the superiority of such lien.
Section 6804 pertaining to the procedure for procuring a tax deed in part provides: "Such deed shall...
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