Fernyhough v. Rockwell

GATES, J. -Respondent purchased certain l’o-ts ..in the year 1907, obtaining a warranty deed therefor, .for value, (from the fee owner. Appellant is the' holder, of a tax deed of said lots, issued in 1897, upon a sale for the taxes of 1892, which deed was not recorded until 1911. At -the -time of 'his- purchase respondent bad no actual knowledge of the outstanding tax deed, nor of the sale upon which the deed was based. The tax receipts for several years -prior and subsequent thereto did, not indicate ■that there had been a sale of -the lots for taxes, nor did the -duplicate tax lists so indicate. Pol. Code, §§ 2143,. 2x47. Before purchasing said premises respondent -obtained an abstract of title duly certified by a bonded abstracter of titles, upon which he relied in making said purchase, which abstract did not show -said tax deed or tax sale. The trial -court found the tax deed to be void, but did not require respondent -to rep-ay appellant’s tax investment with interest as provided by section 2214, Pol. Code. This refusal on -the part of the trial court is the real contention -before us. Appellant claims thát the records in the treasurer’s office imparted constructive notice to respondent -of the existence of the tax sale and deed. Respondent claims -that -the recording acts are controlling. Sections 986, 987, Civ. Code. [1] Respondent also claims that he -cannot be required to repay appellant’s tax investment because of the decision in King v. Lane, 21 S. D. 101, 110 N. W. 37, construing -sections 2148 and 2149, EdL Code. ' This contention is untenáble because these sections relate -o-nly to tax receipts given unlder their provisions. They only apply to cases where there, is an unpaid tax, not to cases where the -tax has been paid- by a sale of the property by the treasurer. The following authorities sustain, in principle, the contention of respondent as -to the controlling effect of -the recording laws, but, of course^ -they arose under widely different tax statutes from ours. Allen v. Everts, 3 Vt. 10; Ives v. Lynn, 7 Conn. 505, 514; Reeds v. Morton, 9 Mo. 878; Sintes v. Barber, 78 Miss, 585, 29 South. 403; Maddox v. Arthur, 122 Ga. 671, 50 S. [80] E. 668; Littlefield v. Prince, 96 Me. 499, 52 Atl. 1010; Humphrey v. Yost, 10 Kan. App. 324, 62 Pac. 550; 37 Cyc. 1433. [2] Section .2216, .Pol. Code, throws additional light on this 'subject. It provides that, when a tax deed is issued, the certificate of sale must be canceled an'd filed away. It is our opinion, therefore, that, when the tax deed was issued, the tax sale became canceled. Until the sale, <the treasurer’s duplicate tax list imparted notice of the unpaid tax. After the tax sale, the treasurer’s sale book, together with the annotation on the 'subsequent tax lists and tax receipts, imparted notice of the, sale. When the tax deed, whether valid or void, was issued; the sale book no longer imparted notice of the sale, and there was no longer any duty on the treasurer’s .part to note such sale on subsequent tax lists or tax receipts. The holder of the tax 'deed then stood in the same position as the holder of any other kind of deed, viz., in order to have surely protected his rights, he should have recorded 'his deed. It follows, therefore, that it would be inequitable to require respondent to repay appellant’s tax investment. The loss must rest upon appellant, by whose negligence it was caused. The judgment of the trial court is affirmed.