16 S.D. 395 | S.D. | 1902
The controlling question in this action between rival real estate claimants is whether the following duly executed tax deed, upon which respondents rely, and by virtue of which title to the premises was quieted in the respondent Chase Morrill, is void upon its face: “Whereas, Fred Tydeman did on the 25th day of June, A. D. 1894, produce to the undersigned, Alfred Abraham, treasurer of the county of Brown, in the state of South Dakota, a certificate of purchase in writing, bearing date the 2nd day of November, 1891, signed by John A. Fylpaa, who at the last mentioned date was treasurer of said county, from which it appears that Brown county did on the 2nd day of November, 1891, purchase at public auction, at the door of the courthouse in said county, the tract, parcel, or lot of land lastly in this indenture described, and which lot was sold to Brown county, ■ for the sum of one hundred and thirty one 64-100-dollars, being the-amount due-on the following-tract or-lot-of land returned delinquent -for the -nonpayment-of-taxes, costs, and charges for -the year-1890, -to-wit,lot number nine (9), block seven-(7),-original plat of Aberdeen;- and said certificate of sale was duly assigned tqE. I. Bunker, and was duly assigned by him to -Fred Tydeman; and it appearing that the said Fred Tydeman is the legal owner of such, certificate-of purchase, and the time fixed by law for redeeming' .the-land therein described having now expired, and the. same not having-been redeemed as provided by law, and the said- Fred Tydeman having demanded a deed for the tract of land mem tioned i-n-said certificate, -and-which was the least quantity :of
Although the deed had been of record more than three years when this action was commenced, counsel for appellant insist that the statute of limitations has never operated, be
In construing a similar statute in a number of cases, it has been uniformly held in Kansas that such a deed is void upon its face. Mr. Justice Brewer, speaking for that court, in Magill v. Martin, 14 Kan. 67, says: “The only question in this case is as to the validity of a tax deed, and one of the objections to it is the same as that which was held fatal in the case of Norton v. Friend, decided at the present term of this court [13 Kan. 532]. It recites a sale to the county, not as a result of a failure to sell to an individual, but as the result of competitive biddings, in which the county entered as a voluntary bidder. The county is not a voluntary bidder at a tax sale. It enters into no competition with individuals. It pays no money to the tieasurer. It simply become the involuntary purchaser of that which no individual will buy. The distinction between a purchase by an individual and one by the county, and the reasons therefor, are clearly pointed out by Mr, Justice Safford in the opinion in the case of Guittard Tp. v. Marshall Co. Com’rs, 4 Kan. 388. Hence a deed which recites a purchase by the county under the same conditions as a purchase by an individual recites an unauthorized and illegal purchase. A deed showing an illegal sale must bb void. But itj
The judgment appealed from is therefore reversed, and the case remanded for a new trial.