Easton v. Cranmer

Puller, J. At the trial of this action to quiet the title to certain improved real property in the city of Aberdeen, the tax deed upon which plaintiff relied was found to be void upon its face, and the defendant was adjudged to be the owner of the premises, subject to plaintiff’s lien for the just amount of taxes paid, which sum, with legal interest, was ascertained to be $556. Prom this portion of the judgment thus favorable to plaintiff the defendant has appealed, and, for a reversal, contends that the tax deed and certain tax receipts and certificates of tax sale were erroneously admitted in evidence over proper objections. The tax deed, being the best evidence of its re227 citáis, was properly admitted, and vitally essential to appellant as primary proof of her allegation that such instrument is void on its face. For convenience, and subject to the objection insisted upon throughout the trial, to the effect that the receipts, certificates, and tax deed are incompetent, irrelevant, immaterial, and no proper foundation laid for their admission, the following stipulation was made upon the record at the conclusion of appellant’s testimony: “It is admitted on the part of the defendants that the records and books in the county treasurer’s office shojv that the county treasurer of the county of Brown, South Dakota, has received from C. F. Easton, the plaintiff, the divers and sundry sums of money indicated by the different exhibits introduced, including the amount indicated in the deed, at or about the dates shown in said exhibits and deed, and that the duplicate receipts in the treasurs’s office show the same date, number, and amount, and show that the same were paid by C. F. Easton.” It being undisputed that the property was duly assessed and legally taxable for the exact amount imposed by proper officials and paid by respondent, the foregoing admission as to what the records in the county treasurer’s office contain renders further testimony unnecessary, and respondent’s right to recover such amount is amply sustained by the decisions of this court. Clark v. Darlington, 11 S. D. 418, 78 N. W. 997; Campbell v. Equitable Loan & Trust Co. of Volga, 14 S. D. 483, 85 N. W. 1051; Bennett v. Darling et al., 15 S. D. 1, 86 N. W. 751; Pettigrew et al. v. Moody County, 17 S. D. 275, 96 N. W. 94. In view of the foregoing and other uncontroverted facts and circumstances by which the unassailed findings below are justified, we assume, without deciding, that appellant’s [228] objection to the introduction of the tax receipts and certificates of sale was well taken, but the presumption that the trial court disregarded the same must be entertained. Yankton Building & Loan Association v. Dowling et al., 10 S. D. 540, 74 N. W. 486; Fowler et al. v. Iowa Land Co., Limited, et al., 18 S. D. 131, 99 N. W. 1095. During all the years for which respondent paid the taxes and claimed ownership under his void tax deed there was a two-story frame dwelling house situated on the lot described in that instrument, which appellant wrongfully removed to an adjacent lot just prior to the commencement of this action; and the amount of such taxes, together with interest, was adjudged to be a hen upon the house as well as on the lot, and the concluding paragraph of the judgment is as follows: “It is further adjudged, ordered, and decreed that upon the failure of the said Emma A. Cranmer to paytothesaidC. F. Easton, or his attorney, the said sum of five hundred and fifty-six dollars ($556) so as aforesaid found to be due, within thirty days from the time of the service of this, decree, then in that case the plaintiff may have execution, and sell said lot seven (7) in block fifteen (15) of the original plat of the city of Aberdeen, together with the frame dwelling house now situated on lot eight (8) in block fifteen (15), of the original' plat of the city of Aberdeen, to the highest bidder, for cash, and apply the proceeds, so far as the same may be applicable, to the payment of the said sum of five hundred and fifty-six dollars ($556), together with interest thereon at twelve (12) per cent, per an-num until the same is paid, and for ail accruing costs after the filing of this judgment, and that the purchaser have the right to remove said dwelling house from said lot eight (8) in block [229] fifteen (15) of the original plat of Aberdeen; and it is further ordered, adjudged, and decreed that, in case said property sells for more than sufficient to pay the said sum of five hundred fifty - six dollars ($556) and accruing costs, then and in that case the surplus be deposited with the clerk of the circuit court in and for the county of Brown, South Dakota, for the use and benefit of the said Emma Cranmer, defendant herein.” Respondent having purchased certain tax certificates from the county, and paid all subsequent taxes legally imposed, acquired the lien of the county upon the. lot and the buildings situated thereon which lien was in no manner impaired by the removal of the building in violation of a statute declaring the perpetrator of such an act to be guilty of a misdemeanor (Rev. Pol. Code, §§ 1568, 1569, 2190, 2199). The relief granted is. clearly within the foregoing statutory provisions, and the judgment appealed from’is in full accord with the uniform decisions of this court. On the 9th day of April, 1904, which was the day following the taking and perfecting of this appeal, the house and lot were, upon due notice, sold separately at public auction, by virtue of an execution predicated upon the judgment before us; and on the 17th day of June following an appeal was taken from an order of confirmation made and entered on the 18th day of April, 1904, in which it is recited that the building in controversy had been sold “as an article of personal property, ” thus apparently depriving appellant of the right to redeem at any time within one year from the date of such sale. The record does not sustain respondent’s contention that the appeal from this order of confirmation must be dismissed on the ground that the same was not perfected in the manner pro [230] vided by statute, and it is unnecessary to make such order, and the original papers connected therewith and transmitted to this court, a part of the bill of exceptions. Bedtkey v. Bedtkey, 15 S. D. 310, 89 N. W. 479. Although the practice is unusual and not to be encouraged, a sufficient ground for dismissing the appeal from the order confirming the sale is not, under the circumstances, furnished by the fact that the records and files essential to a proper consideration thereof were printed in the abstract submitted to this court, and argued with the case on appeal from tfye judgment. In contemplation of the statute relating to taxation, the character of a building attached to a city lot is not changed by its unlawful severance, and the right to subject the same to the payment of real estate taxes, the amount of which was fixed with reference to. such improvement, may not thus be defeated. However, as personal property cannot be sold for delinquent taxes on land, the Legislature has continued the lien, and justified the sale of a removed building in satisfaction of such taxes, upon the theory that it is still a part of the premises. The loss of the right of redemption being the only prejudice apparent, the order confirming the sale is modified by eliminating the recital which characterizes the building as “an article of personal property, ” and with reference thereto the rights of a redemptioner from the sale of real estate is adjudged to be hers. For reasons heretofore stated, appellant’s title is subject to respondent’s lien for taxes, as found by the trial court, and the judgment from which she appealed is in all respects affirmed. In view of the modification above indicated, no costs or disbursements will be taxed, except clerk’s fees in favor of appellant.