| S.D. | Jul 22, 1903
Pursuant to statute, this action was to enforce plaintiff’s equitable right to have certain voidable tax procedings for the year 1898 canceled and set aside so far as the same relate to the land described in the complaint. Although plaintiffs concede that the property was subject to taxation for that year, the actual amount collectible was not ascertained, and the trial court entered an unconditional decree nullifying all proceedings, and restraining the defendant county from ever asserting a lien thereunder. According to our view of the judgment appealed from, it is needless to discuss the unauthorized proceedings, which fully justify the finding that the assessment and all subsequent steps taken by the taxing officers are illegal and void.
The only essential question tobe determined is whether the county was not entitled to recover judgment in the action for the just amount of taxes delinquent and unpaid. That respondents were ready to act in accordance with their conception of equity in the premises, and pursuant to statute, is apparent from the following paragraph of their complaint: “That prior
Consonant with equitable doctrine that an applicant for relief in a case of this character must invariably pay the actual amount of taxes chargeable against his property, the legislature of this state has declared that: “Whenever any action or proceeding shall be commenced and maintained before any court to prevent or restrain the collection of any tax or part thereof, or any particular act of any officer in the collection thereof, or to recover any such tax before paid, or to recover .the possession or title of any property real or-personal, sold for taxes, or to invalidate or cancel any deed or grant thereof for taxes, or to restrain, prevent, recover or delay any payment of taxes, the true and just amount of taxes due upon such property or by such person must be ascertained and judgment must be rendered and given therefor against the taxpayer, and the court may, if in its opinion the assessment or any subsequent proceeding has been rendered void or voidable by the omission or commission of any act required or prohibited, order a reassessment of such property to be made by the proper officer, acting at the time of making of such order and the taking by the proper officers then acting of all such steps subsequent to assessment as shall be necessary to amend such assessment and levy, to the end that the whole, matter- may.be
In Clark v. Darlington, 11 S. D. 418, 78 N.W. 997" court="S.D." date_filed="1899-04-04" href="https://app.midpage.ai/document/clark-v-darlington-6685301?utm_source=webapp" opinion_id="6685301">78 N. W. 997, we say: “It has been the policy of the people of this state and of the former territory to require the payment of taxes on all real property subject to taxation, and hence they have provided that, whenever any action or proceeding shall be commenced to invalidate or cancel any deed or grant for taxes, it shall be the duty of the court to ascertain the true and correct amount '.of taxes due upon such property, and render judgment therefor.”
It being made the duty of the court, both by statute and in equity, to ascertain and adjudge the correct amount of taxes to be paid by the owner, it is not even necessary to tender the amount justly recoverable. Campbell v. Equitable Loan and Trust Co., 14 S. D. 483, 85 N.W. 1015" court="S.D." date_filed="1901-05-04" href="https://app.midpage.ai/document/campbell-v-equitable-loan--trust-co-6685970?utm_source=webapp" opinion_id="6685970">85 N. W. 1015. In a North Dakota case of this character, where the person making the assessment was without even colorable authority to act, and all subsequent proceedings were fatally defective, it was held, in construing section 1643, supra, that relief can be granted only upon condition that plaintiff pay the just amount of taxes for which his property is liable, and that such a judgment in no manner depends upon a request therefor by either party, because the statute was enacted for the protection of the public revenue, and is mandatory in the requirement that “the true and just amount of taxes due upon such property, or by such person must be ascertained, and judgment must be rendered and given therefor against the taxpayer.”