26 S.D. 281 | S.D. | 1910
This action was brought by the plaintiff to foreclose a mortgage on certain real estate in Pennington county. The mortgage and note thereby secured were given by the then owner of the land. Plaintiff alleged that defendant Robinson had, or claimed, some interest in the premises, but that whatever interest was held by him was subject to plaintiff’s mortgage interest. Defendant, answering, by way of counterclaim, alleged that he claimed title in fee under and by virtue of tax sale, under the “Scavenger” tax law, made subsequent to the date of plaintiff’s mortgage, and defendant prayed that his title be quieted as against plaintiff’s claim under his mortgage. The cause was tried to the court without a jury. Findings of fact and con
The learned trial court found that plaintiff was not the owner of the note and mortgage sued upon, and several of appellant’s assignments of error are based upon this branch of the case; but inasmuch as the ownership of the note and mortgage are immaterial, providing defendant acquired fee title, superior to any rights of the owner of such note and mortgage, through the tax proceedings, we will first consider such tax proceedings.
It appears beyond dispute that the taxes upon the land in question were delinquent for the year 1899 and several years prior thereto; that a tax certificate upon tax judgment sale under the so-called “Scavenger” tax law issued to one James R. Sharp, which certificate described the land in question, and which certificate was filed for record November 13, 1902. The court found that more than three years had elapsed since the recording of such certificate, and that the plaintiff was barred from questioning its validity by the statute of limitations. It is as grantee of Sharp that defendant Robinson claims, and his rights are based on such certificate. Appellant contends that the certificate upon sale is not in statutory form and therefore is void on its face, and in support thereof calls attention that the form of certificate required by statute gives date of certificate and date of sale, thus making, it is claimed, the correctness of these dates as given essential to validity of the certificate. The date of certificate is November 6th, and date of sale as named therein November 14th. The point thus made by appellant in his brief might have raised a serious question regarding the validity of such certificate providing such question had been timely raised. Respondent urges that the date “November 14th” is clearly a clerical error. We must conclude that a clerical error was made in one of these dates; but, no matter which date was error, the deed, corrected so as to give the correct date, would be valid on its face, as under the statute a valid sale' can be held, under certain circumstances, after
Appellant has raised several questions relating to the sufficiency of the proceedings leading up to the sale. It is not questioned, however, but what the land in question was subject to taxation, was assessed for taxes for the years included in such sale, and that the taxes remained unpaid at time of sale. This being true, and more than two years having elapsed since date of sale, under section 18 of the said “Scavenger” tax law, being chapter 51 of the Session Laws for 1901, no action lies to question its validity. Bandow v. Wolven, 23 S. D. 124, 120 N. W. 881; Cornelius v. Ferguson, 23 S. D. 187, 121 N. W. 91. It is true that in Bandow v. Wolven and in the numerous other cases supporting the rule laid down therein, which have been decided by this' court, the court was construing the statute of limitation applying to ordinary tax deeds; but there can be no difference in principle. Flickinger v. Cornwell, 22 S. D. 382, 117 N. W. 1039.
The only other question to be considered is as to whether such certificate was ever matured so as to give holder fee title, or whether the holder thereof simply has a lien thereunder. This'
It appears that the owner of the fee title to this land gave a mortgage upon said land June 1, 1889, to secure a valid indebted
The said notes, with indorsements thereon, and the mortgage were received in evidence, and, if the same were sufficient to show transfer of notes and mortgage to< plaintiff’s assignor, there can be no question of plaintiff’s rights, as he acquired all the interest of his assignor. The court found that Ambler was the treasurer of the corporation at the time he purported to- assign the notes and mortgage, but that he had no authority to assign same This finding of no authority was not based upon any evidence whatsoever and amounts merely to a conclusion that there was no' evi
The appellant was entitled to a decree for the foreclosure of his mortgage subject to the superior lien of respondent Robinson under 'his certificate on tax judgment sale.
The judgment of the trial court and order denying trial are reversed. a new