23 S.D. 86 | S.D. | 1909
This is an action to quiet title to a quarter section of land in Brown county. The complaint is in the usual form. The defendant pleads title in himself by virtue of an assessment upon the property for the year 1901, resulting in a deed to his grantors, bearing date of June 3, 1905, and duly recorded on the 6th day of June, 1905. In defendant’s answer he alleges by way of counterclaim his title to the property by virtue of his tax deed, and demands judgment that his title be quieted to the premises in controversy. The case was tried to the court and findings, and, judgment being in favor of the plaintiff, the defendant has appealed.
The court in its findings of fact finds, among others, as - follows : “That tax deed of the premises described in the complaint herein, purporting to be based upon tax sale for taxes levied and
"State of South -Dakota, County of Brown — ss.: I, Solomon West, assessor of Savo Twp., do solemnly swear that the book to which this is attached contains a full list of all the real and personal property subject to taxation in Savo township for the year 1901, so far as I have been able to ascertain the same, and that the assessed value set down in -the proper columns apposite the several kinds and descriptions of property is in each case the full and true value of such property, to the best of my knowledge and belief (except as corrected by the town board), and that the footings of the several columns in said book and the tabular statement returned herewith is correct, as I verily believe.
“Solomon West, Assessor.
“Subscribed and sworn to before me this 25th day of Juné, 1901.
“[County Seal.] Charles Eygabroad,
“Auditor of Brown County,
. “South Dakota.”
From its findings the court concludes as a matter of law: “That the assessor’s oath appended to the tax list as above set forth is fatally defective, in that it fails to comply with the form prescribed by law, and, by reason thereof, the tax proceedings and the deed based thereon were and are void; that the plaintiff is the owner in fee simple, and is entitled to the possession of the land in controversy herein.”
By the provisions of section 3, c. 40, p. 38, Laws 1899, which was in force at the time this assessment was made, the form of oath prescribed to be taken by the assessor is as follows: “Each assessor or deputy assessor shall take and subscribe an oath, which shall be certified by the county auditor, or other officer administering the same, and attach to the return which he is required to make to the county auditor, in the following form: T - assessor for the-of-, in-county, in the state of South Dakota, do solemnly swear or affirm, -that the return to which this' is attached contains a correct description of each parcel of real prop1-
It will be observed that, in the oath prescribed by the act of 1899, the assessor is required to state “that the value attached to each parcel in said return is, as I verily believe, the full and true cash value thereof,” and that the oath of the assessor, as made to his return in the case at bar, is “that the assessed value set down in the proper columns opposite the several kinds and descriptions of property is in each case the full and true value of such property,” omitting the word “cash.” It will be further observed that the assessor in his affidavit omitted the following part of the oath prescribed by'the act of 1899: “That in no case have I knowingly omitted to demand a statement of the description and value of all the real estate which I am required by law to list or in any way connived at any violation or evasion of any of the requirements of the law in relation to listing and the valuing of real estate subject to all the penalties by law.” It is contended by the appellant that, though the oath as taken by the assessor was not strictly in the form prescribed bv the provisions of the Code in force at the time of the -assessment, it nevertheless substantially complies with those provisions, and is sufficient to render ¡the tax proceedings and tax deed valid.
It is insisted, however, by the respondent in support of the conclusions of law and judgment of the trial court that the affidavit of the assessor to his return to the assessment list is so defective
The authorities .generally hold that there is a marked distinction between the term “full and true value” and the term “full and true cash value,” and that the omission of the word “cash” required in the oath is a substantial departure from the form of the oath as prescribed by the statute, and the omission of the last clause in the oath prescribed constituted a marked departure and an entirely different verification from the one prescribed. Black in his work on Tax Titles, in discussing the subject of the verification of assessment roll (section 119), says: “Whenever, therefore, the statute sets forth a specific form for the certificate, it must be strictly followed in all -its essential particulars, or the law is not satisfied. Thus, where the assessors are directed to state in their certificate that the property mentioned in the assesment roll has been estimated at its ‘true cash value,1 it is a fatal defect if these words are omitted, and a subsequent sale is invalid.” In People v. Suffern, 68 N. Y. 321, the learned Court of Appeals of New York says: “The roll- is not finally completed until the oath has been taken and certified as required. The roll cannot be said to be finally completed until the assessors have discharged their whole duty in reference thereto. For the purpose of securing equality of assessment and taxation among taxpayers, the law prescribes a particular oath calculated t,o secure that end, and, until the assessment has the sanction of that oath, it has no validity as an assessment, it cannot
The judgment and order denying a new trial are affirmed.
