159 N.W. 124 | S.D. | 1916
Lead Opinion
Plaintiffs and defendant Mcllvaine are claiming adverse interests and title to a certain 40-acre tract of land situated in Roberts county. This' -land was formerly a portion of the state public school lands. The controversy presented for determination is whether plaintiffs hold equitable title by virtue of a certain school land contract issued' by the state on May 20, 1901, 'or whether defendant Mcllvaine holds title by virtue of a •tax deed issued on May 6, 1911, and a state patent issued on February 20, 1912, and other subsequent mesne conveyances. The 'trial court entered judgment in favor of plaintiffs, based on findings that the tax deed was void for • want of sufficient notice of expiration of th'e period of redemption, and that'the • state patent was void for the reason that the statute under which it was issued is unconstitutional, in that it deprives plaintiffs of their property 'without due proceess of law. From this judgment defendant Mc-Tlvaine has appealed, assigning various errors..
The uncontroverted facts seem to be ás follows: On"May'20, 1901, the state issued'to N. K. Olberg and J.'J. Eoren a public school land sale contract whereby said Ólbérg and Eoren agreed to pay to the state $600 for said land as follows: $150 at the date of contract; $150'in 5 years; $150 in'io years; 'and $150 'in 15 years- — 'and which contract was recorded on the nth day of Máy, 1902. In 1907 the' said contract was assigned to 'respondents, who then took and ever since have remained in possession of said 'land;, but -none of the assignments of said'contract were placed on record until the nth'day of April, 1912. The taxes assessed against said land for the year 1907 were not paid, and
“That at the time of the -issuance of said notice to redeem from tax sale, mentioned in finding No-. VIII, and at the time of*551 the execution and delivery of the treasurer’s tax deed referred to in finding No. IX, that one Charles Canfield was in the actual, open, and notorious possession of said premises, cultivating the same as a farm, he being then and there a tenant of these plaintiffs ; that said notice to redeem from tax sale was not served upon the plaintiffs, or either of them, or upon their said tenant, Charles Canfield.”
Appellant contends that that portion of said finding which reads “that said notice to1 redeem from tax sale was not served upon plaintiffs or either of them, or upon their said tenant” is not supported by the evidence, but is contrary thereto, and that the proof was insufficient bo sustain that portion of said finding. We are of the view that this contention is not tenable. While it is true that section 2213, Pol. Code, provides that a tax deed shall be prima facie evidence of the truth of all the facts therein recited, still this prima facie case prevails only until the opposite party has produced competent evidence sufficient to overcome such prima facie case. Peters v. Lohr, 24 S. D. 605, 124 N. W. 853. The statute in force at the time of the issuance of the tax deed in 'question required that such notice to redeem be served on the owner of the land, or upon the person in possession of the land, and upon the person in whose name the land is taxed, in the manner provided by law for the service of summons, and that such service shall be deemed complete when an affidavit of service and the particular mode thereof shall have been filed with the county treasurer authorized to- execute the tax deed. Section 2212, Pol. Code, as amended by chapter 194, Paws of 1909. 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 introduced in. evidence, and it fails to show service on the owner or person -in possession, that of itself is evidence sufficient to overcome the prima facie case arising from the provisions of section 2213. Berry v. Howard, 33 S. D. 447, 146 N. W. 577; Weller v. Platt, 33 S. D. 509, 146 N. W. 705. The notice in question was addressed to N. K. Qlberg, J. J. Foren, and M. A. Caldwell, parties in interest as purchasers or as assignees of contract to 'whom said land is assessed, and was signed by C. N. Mcllvaine as agent of Foster, the
Binding no error in the record, the judgment and order appealed from are affirmed.
Concurrence Opinion
While I concur in the result reached, I do not believe it necessary to pass upon the constitutionality of section 45, e. 224, Laws 1911. Under the facts of this case, the claimant under the patent took the land with notice of the plaintiffs’ equities, and therefore took title, if any under such patent as trustee for .plaintiffs.