Carrol v. Fowler

Mar 26, 1918
File No. 4241
Reporters:
, ,
Before:
McCoy

Lead Opinion

McCOY, J.

Plaintiff, claiming to be free owner, instituted this action to determine adverse ownership and claim to a certain quarter section of land’ situated in BufflaliO’ cic‘unty. De*245fendant Fowler answered, alleging ownership in Ihimsel‘f. Findings and judgment were in favor of ‘defendant Fowler, and plaintiff appeals.

[i] Plaintiff, ithie appellant, claims to be the ovneí /f salid ‍‌​​​‌​​​​‌‌‌​‌‌​​‌‌​​​​​​​‌​​​‌​​​‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌​‌​​‌​​​‌‌‌​​‌‌​​​​‌‌​‌‌‌‌​​​​​‌​‌​​​‌‌‌‌‌‌‌‌‍■land under ‘and by virtue of two certain tax ‘deeds. The respondent claims to be the owner of Said lands .in fee tinder ‘and by virtue of a patent from tire United States government, and subsequent mesne ‘conveyances. The ¡trial Court found that ‘both tax deeds, unidler which appellant ‘daims, were wholly void‘. Tire first tax deed under which appelant claims was issued to one Bowdle upon la sale oif Salid lands, miadle on the 3d day of October, 1887, for delinquent If axes’ of ¡the year 1886. It appears thalb tire said tax deed so ‘issued’ Itloi Bowdle omitted tihle .following words: “And had- been duly assessed! and! properly tíbargedi on ‍‌​​​‌​​​​‌‌‌​‌‌​​‌‌​​​​​​​‌​​​‌​​​‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌​‌​​‌​​​‌‌‌​​‌‌​​​​‌‌​‌‌‌‌​​​​​‌​‌​​​‌‌‌‌‌‌‌‌‍the tax books of duplicates for the yCalr 1886.” We are of the opinion that ‘M‘s omission Constituted) a fatal defect, ‘appearing on (the face of said deed. Rector & Wilhelmy Co. v. Maloney, 15 S. D. 271, 88 N. W. 575; Horswill v. Farnham, 16 S. D. 414, 92 N. W. 282.

[2, 3] The second tax deed under which) appelant daims was issued to one Newcomer upon a Sale for delinquent taxes made November 7, 1892, for the taxes of tire year 1891. The notice of taking of the tax deed was signed ‘by tire Iowa & Dlakota Baud Gojmpany instead ¡of by Newcomer. It also, appears from the .record that at fire tlime the Salid Newcomer be•came ‍‌​​​‌​​​​‌‌‌​‌‌​​‌‌​​​​​​​‌​​​‌​​​‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌​‌​​‌​​​‌‌‌​​‌‌​​​​‌‌​‌‌‌‌​​​​​‌​‌​​​‌‌‌‌‌‌‌‌‍fire owner of the certificate of fax sale, on which said deed to him was based, the said I‘owa. ‘and Dakota Land Company ■okimedi to be ¡the. owner of said land under tire salid tax deed theretofore issued to said Boiwdle, and it also appears that at tihe time .the said Newtaomer obtained title to said certificate of tax •sale, ;and at tire time Said tax deed was issued to him, he was ■president of the Iowa & Dakota Band! Company. We are of the view that under .tírese Cimcumstances the said tax deed so issued to said Newcomer was. also Voliid and icif no effect whatever. Graut v. Burton, 26 S. D. ‍‌​​​‌​​​​‌‌‌​‌‌​​‌‌​​​​​​​‌​​​‌​​​‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌​‌​​‌​​​‌‌‌​​‌‌​​​​‌‌​‌‌‌‌​​​​​‌​‌​​​‌‌‌‌‌‌‌‌‍52, 127 N. W. 480; Joy v. Midland Bank, 26 S. D. 244, 128 N. W. 152. We are also of the opinion that ‘there was no prejudicial’ error in the finding that the respondent iis the owner in fee of the land in question.

Appellant also contends that he and Ms predecessors in. in*246tareslfc had been in possession of ‘and paid the taxes on said land coraitfauuiously for more than ten years preceding tine commencenrerut of fhliis action. We are of ifae opinion that tlhie evidence submitted) fails to sustain; this oodtenitioin.

Finding no .prejudicial err‘or in the retbird, judgment and order appealed ‘from are affirmed.





Concurrence Opinion

WHITING, P. J.

(’concurring specially). While I do not think ‍‌​​​‌​​​​‌‌‌​‌‌​​‌‌​​​​​​​‌​​​‌​​​‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌​‌​​‌​​​‌‌‌​​‌‌​​​​‌‌​‌‌‌‌​​​​​‌​‌​​​‌‌‌‌‌‌‌‌‍the record hierie&i sustains*, in toto, the is‘taibemient of fadts fioumld in. the majority opinion, I am of the opinion that the record: shlows defendant Fowler to be, for reasons other than those stafceld in ¡the majority opinion,, .the holder of ‘at least the complete equitable title to s‘aiidl lands. I therefore concur in the result.