Hough v. Perkins County ( 1948 )

This action involves the title to certain land in Perkins County. The land was sold to the county at tax sale on December 16, 1929 for nonpayment of the taxes for the year 1928. On June 30, 1942 the county took a tax deed to the premises. This deed was recorded July 3, 1942. The county sold the land to the defendant Hendricks on April 9, 1943 since which time he has been in possession thereof. Plaintiff, the record owner prior to the tax deed, commenced this action on March 11, 1947, wherein he seeks to set aside the tax deed and have the title to the premises quieted in him. The defendant Hendricks, among other things, pleaded the three-year statute of limitations, SDC 57.0903, as amended by Ch. 337, Laws of 1941, which so far as here material provides:

"No action shall be commenced by the former owner or by any person claiming under him, to recover possession of any real property which has been sold and conveyed by deed for nonpayment of taxes or to avoid such deed, unless such action shall be commenced within three years after the recording of such deed."

Trial was had and it appears without dispute that the tax deed is in all respects regular and valid upon its face. The only defect in the tax proceedings was the failure of the county treasurer in 1929 to comply with the provisions of Sec. 6789, R.C. 1919 (SDC 57.1111) which require that the county treasurer make and file a return of tax sale in the office of the county auditor and retain a copy in his office. A single question is presented. Does the failure of the county treasurer to make and file the return of the tax sale as required, render inoperative the three-year statute of limitations?

This court has held that the failure of the county treasurer to make and file the return of sale renders the tax proceedings invalid. Huckstedt v. Jamison, 59 S.D. 464, 240 N.W. 506. In that case, however, the question was presented before the three-year statutory period had expired, and the effect of the statute upon such a defect in the tax proceedings was not involved.

This three-year statute of limitations has been among the statutes of this state at least since 1891. In the case of Bandow v. Wolven, 20 S.D. 445, 107 N.W. 204, 207, it was held that "by the terms of the statute no defects in tax proceeding are excepted from the operation of the limitation; none should be recognized by the courts except such as are required to prevent owners from being deprived of their property without due process of law." In that case it was held that a defective published notice of sale was not a deprivation of due process. Thereafter, it was held that where the tax deed is valid upon its face the statute constitutes a bar to an action which is not brought within the three-year period "unless it is shown that the property is outside of the taxing district, or has not been assessed, or is exempt from taxation, or the taxes have been paid before the sale, or the property has been redeemed from such tax sale before the execution of the deed." Cornelius v. Ferguson, 23 S.D. 187, 121 N.W. 91, 93. The court consistently adhered to the formula thus announced in the Cornelius-Ferguson case until the case of Cain v. Ehrler et al., 33 S.D. 536, 146 N.W. 694, on rehearing36 S.D. 127, 153 N.W. 941, wherein it was held that an action to set aside a tax deed that had been executed without service of notice of expiration of the right of redemption was not barred by the three-year limitation. In the opinion of the two dissenting judges this holding was a departure from the principles underlying the former holdings of the court. Whether there was such a departure from principle we need not determine. Such holding has been approved and has become the settled law in this state. Ulrickson v. Ulrickson, 42 S.D. 225, 173 N.W. 742; Parker v. Norton, 71 S.D. 506, S.D. 26 N.W.2d 453. The court in the majority opinion in the Cain-Ehrler case approved the holding and reasoning in the case of Bandow v. Wolven, supra, and it is our opinion the reasoning in that case is sound and decisive of the issue now before us. It was there said:

"The notice required by the statute was not given, an irregularity which certainly would have invalidated the sale had timely objection been made. Is it now available? We think not. The owner of the land cannot be heard to say that he did not know the law. He knew that his land was subject to taxation, that it was assessable every year, that no demand for taxes was necessary, that they became delinquent on the 1st day of March of the year after they were levied, and that if they were not paid it was the duty of the treasurer to sell his land to satisfy the same on the first Monday in November. The time of the assessment, levy, and sale was prescribed by the statute. The law itself gave notice of the time and place of sale. The Legislature might have dispensed with further notice. It has declared that no action shall be commenced by the former owner or by any person claiming under him to recover possession of land which has been sold and conveyed by deed for non-payment of taxes, or to avoid such deed, unless such action shall be commenced within three years after the recording of such deed. The declaration is comprehensive and unqualified. No doubt exists as to the legislative intent. By the terms of the statute no defects in tax proceedings are excepted from the operation of the limitation; none should be recognized by the courts except such as are required to prevent owners from being deprived of their property without due process of law. The legislative will should prevail to the fullest extent possible. It is the owner's duty to pay his taxes when they become due. He knows the consequences of failure to do so, the effect of the special limitation, and has no cause to complain; ample opportunity being afforded for the protection of his rights. If no published notice of the sale was necessary, certainly a defective one should not be regarded as a jurisdictional defect. There was no want of power. It may have been irregularly pursued, but the iregularity was waived by the owner's failure to assert his rights within the period prescribed by the statute, and that period is neither unjust nor unreasonable."

[1, 2] It seems clear to us that if the failure to give the statutory notice of sale is not such a defect as will render inoperative the three-year statute, neither is the failure of the treasurer to make and file the return of sale. In the Cain-Ehrler case much emphasis is given to the fact that the legislature had expressly declared the consequences of the failure to give the notice of expiration of the right of redemption in that such notice was made absolutely essential to cut off the right of redemption. The legislature, however, has attached no consequence to the failure of the treasurer to make and file the return of sale. It is but a step in the proceedings subsequent to the sale and is such a requirement as might readily have been omitted as wholly unrelated to due process. It being within the power of the legislature to dispense with the requirement to make and file the return of sale, and the legislature not having expressly attached any consequence to the failure to make and file such return, we are of the view that such step in the tax proceedings is not jurisdictional in the sense that the failure to make the return will render inoperative the three-year statute.

The judgment appealed from is reversed.

SMITH and HAYES, JJ. concur.