146 N.W. 577 | S.D. | 1914
The record in this case shows that one Bberhart Thomson -died intestate, on the 3d day of March, 1904, and that, at the time of his death, he was seised in fee of a 120-acre tract of land in Brown county; that, in 1905, this land was sold by the treasurer -of the -county for the 1904 taxes thereon; that, no redemption having been made from said sale, a treasurer’s deed, purporting to -convey the said land to the purchaser at the said tax sale, was issued on the 25th -day of March, 1908; and that thereafter, on the nth d-ay of May, 1908,'the grantee in said treasurer’s deed conveyed the said premises to the appellant in this action. The respondent is the administra
It is claimed by the respondent that there were numerous defects and informalities in the various proceedings leading up to the issuance of the tax deed, which render the deed voidable; but, in the view we take of the case, it will be unnecessary to consider more than one of these defects. Respondent’s intestate was never married, but -left surviving him, as his sole heirs at law, a sister and three brothers, to> wit, Mary A. Hall, Halver Roass, Ole ’ Silerud, and Martin Bjekness. At the time of, prior to, and ever since the death of the said Thomson, his said sister, Mary A. Hall, lived on land adjoining the land of Thomson; and it was at her house that he lived, and where he died. The trial court found as a fact that, upon the death of said Thomson, on the 3d day of March, 1904, the said Mary A.. Hall took possession of, and remained in possession of, the said premises until after respondent was appointed administrator of Thomson’s estate, on the 29th day of December, 1908, when he took possession thereof. Prior to the issuance of the tax deed upon which appellant bases his claim of title, his grantor undertook to serve the notice required by section 2212 of -the Pol. Code. The notice attempted to he served in this instance was addressed as follows: “To Elberhart Tomson, other wise known as Eberhart Thomson, the owner, person in possession and in whose name the S. % 0f the S. E. % and N. W.% of the S. E. %, Sec. six (6), in township one hundred twenty-seven (127) north, range sixty-five (65) west 5th P. M., in Brown county. South Dakota, is taxed, and to all other persons in interest.”
But this deed, though irregularly issued and subject to cancellation, was yet color of title; and -appellant, for the purpose of putting outstanding claims, if any existed against the disputed premises, at rest, immediately after he acquired his interest therein, commenced an action in the circuit court for Brown county, under the provisions of chapter 81, Raws of 1905. Said action was not only brought for the purpose of quieting the title to the real property involved' in this action, -but included a large number of -segregated tracts situated in Brown county and was against a large number of persons who were named as defendants, and against the heirs, devisees, legatees, executors, administrators, and creditors -of any deceased -person, or persons, who might have, or claim to have, any interest in any
'‘Due diligence,” as used in section 2 of chapter 8i, Laws of 1905, has the same meaning as it does where used in section 112, Code ‘Civ. Proc., and requires the same good faith effort on the part of the plaintiff in an action prosecuted under said chapter 81 to ascertain the name of a party who is to be divested of' his interest in real property as said section 112 does to ascer
Nothing said herein is to be taken as an expression of opinion as to the constitutionality or unconstitutionality of chapter 81 of the Session Laws of 1905. The law as it stands not having been complied with, it is not necessary to pass upon the validity of the law itself. Neither is anything said herein to be ' taken as an expression of opinion as to whether or not chapter 81, Laws of 1905, authorizes a party to have litigated, in one action, claims to separate tracts of land, plaintiff’s title to which is derived from different sources, and where no community of interest exists between the several defendants.
This necessarily leads to the conclusion that the trial court was right, and the order and the judgment appealed from are affirmed.