9 S.D. 375 | S.D. | 1896
Lead Opinion
The purpose of this litigation is to determine adverse claims to a quarter section of land in Beadle county. Plaintiff is the original patentee of the United States. Defendant claims under a tax deed. If the land was not subject to taxation when assessed, defendant has no interest therein, and cannot require reimbursement for the sums paid for the tax title, notwithstanding his deed is fair upon its face, and it was recorded more than .three years before this action was commenced. This firmly established proposition is conceded by appellant.
The land was sold October 5, 1886, for taxes assessed in 1885. The tax deed issued October 6, 1888. Plaintiff entered the land as a government homestead-in August, 1882, receiving a patent, dated September,7, 1887, which was recorded in Beadle county, December 19, 1889. She is still the owner unless deprived thereof by detendant’s tax title. At the trial defendant introduced his deed, evidence showing when the action was commenced, and read from plaintiffs deposition as follows: ‘ T obtained title to the land in question from the government. I entered the land under the homestead law on or about the latter part of August, 1882, and afterwards made proof for this land before the register and receiver of the district land office, at Huron, about the middle of September, 1883.” In rebuttal the plaintiff called as a witness James, McDowell, who testified as
The territorial legislature was expressly prohibited from passing any law interfering with the primal disposal of the soil and from imposing any tax upon property of the United States. Rev. St. U. S. 1874, § 1851. The same prohibition is in the enabling act and state constitution. Enabling Act, § 4; Const. Art. 11, § 5; Id. Art. 22. Like inhibitions upon the power of territories and states to tax land belonging to the United States have been frequent. It cannot be doubted that the provisions which speak of the exemption of property of the United States from taxation, in the various acts of congress admitting states into the union, are equivalent to each other; and that, like the other provision, which often accompanies them, that the state ‘ ‘shall not interfere with the primary disposal of the soil by the United States,” they are but declaratory, and confer no new right or power upon the United States. Van Brocklin v. Tennessee, 117 U. S. 151, 6 Sup. Ct. 670. With respect to the pub-
Under the law imforce when plaintiff acquired title to this land, she was, being a homestead settler thereon, permitted to pay for it with cash. In addition to making payment, she was required to prove her actual settlement, improvement, and cultivation for not less than six months preceding the date of proof. Her residence must have been actual and continuous for the. prescribed period. Such proof was required to be made to the satisfaction of the register and receiver, whose decision, as in other cases, was subject to examination and review by the general land office and the interior department. Rev. St. U. S. §§ 453, 2301; Bohall v. Dilla, 114 U. S. 47, 5 Sup. Ct. 782; Vantongeren v. Heffernan, 5 Dak. 180, 38 N. W. 52; Cornelius v. Kessel, 128 U. S. 456, 9 Sup. Ct. 122. In the absence of any evidence to the contrary, this court will presume that the officers of the land department performed their duties properly, and that plaintiff did not comply with the prerequisites for the acquisition of title until the time her second proof was offered. Until then she did not have a perfect equity, and until that time her land was not subject to taxation. The judgment of the circuit court is affirmed.
Concurrence Opinion
I concur in the result reached by my associates, but prefer to base my affirmance upon the ground that no title to the property in dispute ever passed, for the reason that the description of the land as shown in the various proceedings