| S.D. | Jan 26, 1910
The plaintiff alleges that he is the owner in fee of a certain parcel of real estate situated in Hamlin ■ county. That defendant claims an interest therein adverse to plaintiff under and by virtue of a tax deed, which plaintiff alleges was .wrongfully and unlawfully issued by the treasurer of said Hamlin county. The complaint alleges various irregularities' in the assessment and tax sale under which said deed was issued. Plaintiff demanded judgment that defendant be required to set forth his claim of title to said premises, and that said tax deed be decreed by the court to be null and void, and that the same be canceled of record, and that plaintiff’s title be, quieted. Defendant answered, admitting that he claimed fee title, and alleged that defendant was in possession of said land, and also alleged that the statute under which the action is brought is in contravention of the federal and state Constitutions, and demanded that • plaintiff be granted no relief, and that the tax deed be declared to be a good and valid instrument, and that plaintiff be divested of all right, title, and
It is first contended by defendant that the court erred in not granting defendant’s request for a trial by jury, but we are of the opinion that such contention is not tenable. The procedure in this state to determine adverse title, and to obtain possession of real estate in the possession of another, is a combination of both law and chancery procedure, as practiced under the rules of the common law. In all those cases where the action is possessory only, brought for the purpose of obtaining possession of real property, in substance the same as common-law ejectment, both parties, as a matter of right, are entitled to' trial by jury. In all those cases which at common law came on the equity or chancery side of the court, such as actions to quiet title and cancel instruments, where the equity power of the court was invoked as the principle of primary cause of action, neither party is entitled to trial by jury as a matter of right. Reichelt v. Perry, 15 S. D. 601, 91 N.W. 459" court="S.D." date_filed="1902-05-14" href="https://app.midpage.ai/document/reichelt-v-perry-6686117?utm_source=webapp" opinion_id="6686117">91 N. W. 459; Burleigh v. Hecht, 117 N.W. 367" court="S.D." date_filed="1908-07-22" href="https://app.midpage.ai/document/burleigh-v-hecht-6687029?utm_source=webapp" opinion_id="6687029">117 N. W. 367; Thomas v. Ryan, 123 N.W. 68" court="S.D." date_filed="1909-10-27" href="https://app.midpage.ai/document/thomas-v-ryan-6687250?utm_source=webapp" opinion_id="6687250">123 N. W. 68. The case at bar is equitable purely, brought to quiet title and to cancel a tax deed on account of alleged irregularity, and possession is not demanded by either party.
Defendants claim to be the owners of said real estate under a tax deed. The plaintiff seeks to have this tax deed vacated and canceled, and has offered evidence attacking the regularity of said deed in two particulars. First, plaintiff claims that said deed is void because the assessor’s return was not sworn to by the assessor, as required by section 2102, Pol. Code; second, that the notice of tax sale was insufficient in that no dollar sign ($) precedes the figures representing the amount of taxes due. But we are of the opinion that the cases of Avant v. Flynn, 2 S. D. 153, 49 N.W. 15" court="S.D." date_filed="1891-06-19" href="https://app.midpage.ai/document/avant-v-flynn-6683049?utm_source=webapp" opinion_id="6683049">49 N. W. 15, and Bandow v. Wolven, 20 S. D. 445, 107 N.W. 204" court="S.D." date_filed="1906-04-03" href="https://app.midpage.ai/document/bandow-v-wolven-6686750?utm_source=webapp" opinion_id="6686750">107 N. W. 204, have decided these questions adversely to respondent’s contention. In Bandow v. Wolven it appeared that the assessor had omitted to sign the oath, but the county auditor’s certificate was annexed, reciting that the assessor had subscribed and sworn
This was the situation in Avant v. Flynn, and the court in rendering that opinion said: “Still, if the oath required by the statute was taken by the assessor, and through inadvertence, carelessness, or other cause the officer administering the oath shall fail to attach his' certificate to the assessment roll, would this irregularity make the assessment void? We think not.” In both these cases cited there was oral testimony showing that the assessor had in fact taken the oath. In this case we are of the opinion, in the absence of testimony to the contrary, that the presumption is that the assessor did take the oath, and that the auditor negligently omitted to sign and affix his seal to the certificate. The raspen dent had the burden of showing that no such oath was in fact taken. The plaintiff is the one who has attacked the legality of the- tax deed, and the burden is on him to show that no oath was taken by the assessor. In Bandow v. Wolven, 120 N.W. 881" court="S.D." date_filed="1909-04-06" href="https://app.midpage.ai/document/bandow-v-wolven-6687126?utm_source=webapp" opinion_id="6687126">120 N. W. 881, on rehearing, this court held that the tax deed, being regular on its face, was prima facie evidence of the truth of the facts therein stated, and that the burden was on the one attacking such deed to show defects that would render such deed void. In the' case at bar the fact that the auditor’s signature does not appear on the certificate is only evidence of the fact that 'such signature is lacking, but is not evidence, either one way or the other, as to whether the oath was in fact administered. The recital in the tax deed in evidence is that said property was' “duly assessed,” and which recital is prima facie evidence of the truth of that fact, which necessarily and logically means that the said recital in the fax deed is prima facie evidence of the j.a<'t that the said assessor took the proper oath to the return on his assessment roll; otherwise the property was not “duly assessed.”
In Bandow v. Wolven, 20 S. D. 445, 107 N.W. 204" court="S.D." date_filed="1906-04-03" href="https://app.midpage.ai/document/bandow-v-wolven-6686750?utm_source=webapp" opinion_id="6686750">107 N. W. 204 ,this court; in speaking of the absence of the “dollar mark” in the notice of tax sale, said: “The figures 26 16, 2 45, 28 61’ necessarily relate to the amount of taxes, penalty, and interest and total amount due. Notwithstanding the absence of dollar marks, no person of ordinary intelligence would doubt that these figures were designed to express certain sums of money. Observing that each group of figures was divided by a printer’s space, such a person would instantly conclude that the figures preceding the space represented dollars, and those following it represented cents. It is therefore clear that the figures should be read as if they were written thus: $26.16, $2.45, $28.61.” It is more clear in the case at bar, where the figures are separated by a decimal point or a period, in addition to the print'er’s space, and the first group of such figures at the head of the first column has the dollar sign preceding it. Therefore the 8.55 so divided by a printer’s space and a decimal point should be read $8.55.
It is contended by respondent that, because the motion for new trial was made after the entry of judgment, and the appeal
It appearing from the evidence that the tax deed of defendants is regular on its face, and that the plaintiff has shown no defects therein, or in the taxing procedure, that would render such deed void, the findings and judgment of the lower court and the order denying new trial are therefore reversed; and, inasmuch as the plaintiff may he able to produce either the assessor or auditor, or both, on another trial, a new trial is ordered, and the cause remanded.