161 N.W. 195 | S.D. | 1917
Plaintiff claims title to two certain tdwn lots situated in Worthing, Lincoln county, -basing his right to recover
In Early v. Whittingham, 43 Iowa, 162, it was held that, where there-were.no records showing that there was an assessment for a certain year, nor evidence -that such records had once existed and been lost, the prima facie evidence of the assessment and levy based on the tax deed is overcome. In rendering this ■opinion the Supreme 'Court of Iowa said:
“Under such circumstances', the strong and conclusive presumption -must be that all the books or records relating to the assessment, levy, or 'sale, which ever existed, are now on file or •among the * * * records in the offices of the treasurer and auditor. There could have been neither an assessment, levy, or sale, without some written evidence or record thereof. And it is made the duty of the said officers to preserve the same in their respective offices. The loss or destruction of such) records, without any.proof, cannot he presumed. We are of the opinion therefore 'that the decided weight of testimony is in favor of the position -that there never was an assessment, levy, or sale.”
In Hjall v. Kellogg, 16 Mich. 135, the Supreme Court of Michigan, in a similar case, said':
“It -appears, 'among other things-, from the certificates and evidence of -the proper officers, that these papers (the assessment*284 record) are not, in some instances, to be found in their offices, and that no knowledge is possessed1 of their existence at any time. The law presumes that all officers intrusted with the * * * public files and) records will perform their official duty by keeping them1 safely in their offices. Where a paper is not found' where, if in existence, it ought to be deposited or recorded, the presumption therefore arises that no such document has ever been in existence. * * * Until this presumption is rebutted, it must stand as proof of such nonexistence.”
In Hilton v. Bender, 69 N. Y. 75, in a case where it was urged that, as the unfound assessment on which a fax deed was issued would -be over 30 years old, the law; would presume the deed was based on a sufficient assessment, and in that case the court held, citing Greenleaf on Evidence, § 20, that the rule as to ancient documents did not apply to public records which are supposed to remain in the Custody of officers charged with their preservation, and which must be proved or their loss accounted for and supplied iby secondary evidence. In rendering that opinion the New York 'Court of Appeals said:
“The presumption is that these recrods and documents are in existence, and in the absence of evidence, if they cannot be found or their loss or destruction in some way accounted for or explained, the natural presumption is that they never did exist.”
“Under this provision of the law, the completed service, and the particular mode thereof must appear in the taxing records and procedure required to be kept on file with the county treasurer. When this record required .by law to’ be so filed is*285 introckicd in evidence, and it fails to show service on the owner or person in possession, that in itself is evidence sufficient to overcome the prima facie case arising from the provisions of section 2213.”
'Section 2213, Pol. Code, was -the statute in force at the time of the trial of this action. We are -therefore of the view that the finding in question was not -sustained -by sufficient evidence.
The judgment and order appealed from are reversed, and the cause remanded' for new- -trial.