146 N.W. 910 | S.D. | 1914
One Allen L. McKinnon, during his lifetime and until -his death, was the owner in fee, of a quarter section of land, in Potter county. In the month of October, 1893, he died intestate, in the state of Washington, leaving the quarter section of land -in Potter county, as a part of his estate. On the 22nd of October, 1910, Archie D. McKinnon, plaintiff, was appointed administrator of the estate of the deceased, by the county court of Potter county, and brings this action as such administrator. At the time this action to quiet title was brought, the plaintiff and one J. C. McKinnon, his brother, were sole surviving heirs of the deceased. Later, the plaintiff purchased his brother’s interest, and now is the sole claimant of said land.
Appellant’s assignments of error are grouped under five heads. First: Irregularities in the proceedings and judgment under which the Scavenger Tax Sale was made; Second: Invalidity, of the Scavenger Tax certificate as conferring title because of the failure of the certificate holder to -serve -and file .proper affidavit of service of notice of maturity; Third: The allowance of damages for use and occupancy of the land; Fourth: As to the amount allowed defendants under their tax lien; Fifth: As to the right of plaintiff to maintain an action to -quiet title without firs.t -making an offer to redeem, and a sufficient tender.
The recital is, in substance, that proof of “due and legal service of notice of publication of t'he written certificate has been filed in my office in accordance with the provisions of section 15, Chap. 51, Daws of 1901.” What, the clerk considered “proof of due and legal service,” is not stated. The purported certificate is wholly incompetent as an instrument of evidence. The record being silent, we may however assume ,that the instrument was received in evidence without objection on the part of respondent. But when the trial is to the court, as in this case, it will be presumed that the court disregarded incompetent evidence, and based its finding upon competent evidence, unless it be made affirmatively to appear that no competent evidence was received which could sustain the finding. Mead v. Mellette, 18 S. D. 523, 101 N. W. 355; Bowdle v. Jencks, 18 S. D. 80, 90 N. W. 98; Easton v. Cranmer, 19 S. D. 224, 102 N. W. 944; Merager v. Madson, 19 S. D. 400, 103 N. W. 650; Re McClellan, 20 S. D. 498, 107 N. W. 681.
A preponderance of evidence against the trial court’s findings must be made to appear from the record presented on appeal, to overcome the presumption that the facts found are fully justified. Clark v. Conners, 18 S. D. 600, 101 N. W. 298. The findings of the trial court that no ex rel affidavit was attached to and filed with the affidavit of publication, we think must be sustained.
Appellants urge, however, that section 18 should be con
But in the case before us the -statute has barred any attack on the validity of the sale or tax lien, and the case falls within the r-ule announced in Archer v. Tubbs Sheep Co., supra, where it was held, construing the Scavenger Act, that the tax certificate holder was entitled to recover the amount paid on the tax sale, with the interest and penalty provided in the statute, to the end of the period of redemption, and 7 per cent, interest thereafter.' In this respect, the judgment of the trial court was erroneous, and should be modified to confo-rm to the rule announced in the Archer case.
The trial court will modify its judgment and decree, in accordance with the views herein expressed, and as thus modified, •the judgment is affirmed. No costs for printing briefs to be taxed by either party.