Decory v. Nelson

Smith., J. Action under the provision's of' chapter 81 of the Daws of 1905 i101 determine conflicting claims to real property. The complaint is in the usual! form. The only issue material to this appeal arises from defendant’s affirmative defense alleging title in (himself under at 'tax' dead dated March- 18, 1914. Appellant’s case hinges upon, the validity of this deed. The trial court held the deed invalid and1 void and gave judgment for [55] plaintiff. The land was sold November* 13, 1911, for taxes of 1910 •amounting to $4.05. Thereafter appellant paid taxes for the years 19 n to 1913, inclusive, amounting, with interest and costs, to $19.93 in the aggregate. • * [1] Plaintiff 'did not tender the .amount of taxes due before commencement of the action, but at the trial brought into court tendered1 to: defendant and deposited the full amount of taxes, costs, and interest. This was a sufficient compliance with the provisions of section 2214, Pol. Code. Weller v. Platt, 33 S. D. 509, 146 N. W. 705; Berry v. Howard, 33, S. D. 447, 146 N. W. 577. [2] The validity of the aforesaid tax deed turns upon an issue of .fact 'as to service of notice of application for tax deed and the sufficiency of the affidavit of service of such'notice, pursuant to section 2212 of Pol. 'Code. The only proof or return of service is contained in an affidavit as follows. “State of South Dakota; County of Tripp' — ss.: “Officer’s Return. “Albert Nelson-, being first duly sworn, deposes and says: That he is a resident and elector of the county of Todd, attached to Lyman County for judicial purposes and1 taxation, and state of 'South Dakota, that 'the hereto attached notice of intention to take tax deeds came info his -bands for service -on -the 8th day of December, 1913, and that he served! the same u-pon Maggie Marion-now Maggie Decory, the record owner -and upon Maggie Mari-on, the person in whose name the land1 described- in said notice is taxed. That s-aid service was made upon Maggie Marion personally at her home ranch at Rosebud, South Dakota, -on the 8th day of December, 1913, 'by 'delivering to her -a true and correct copy thereof. That -affiant is 'in no- way interested in- said- proceedings. “Albert Nelson. “Subscribed and sworn to before me this nth day of December, 1913.” Attached to the written demand for a tax deed filed with the county treasurer was an -affidavit -of Herman L. Bode, stating that -he is— “the attorney for Olo-f Nels-on, the lawful- holder and -owner of county treasurer’s certificate oif Tax Sale No. 198,” et-c. (-describing the land), and “that -on the 17th day of November, 1913, [56] proceedings were commenced to procure a tax deed 'to' the land described in said certificate, and that since said date he has caused a copy of the hereto' attached matice of intention to take tax deed to be served! upon) Maggie M'arion, now Maggie Decory, .the record owner of said) described! land, and the party in whose name the said land1 is taxed, which fact more fully appears by the affidavit and! officer’,s return- which is hereto attached and made a part of this (proceeding. * * * That service of said notice was completed on the - dhy of December, 1913, and a record of the particular mode of said service and a copy of the proceedings filed with the treasurer of Lyman county, on the 18th day of December, 1913.” Plaintiff denied that any service of notice whatever had1 ever been made upon bar, and the trial court found “that the said notice of intention was never in fact served1 Upon her.” Section. 2212, supra, declares that: “Service shall 'be deemed complete when an affidavit of the service of said notice and of the particular mode thereof, duly signed and verified) )by the holder of the certificate of purchase, ■his agent or attorney, shall have been, filed with the treasurer authorized to execute the tax deed. Such affidavit shall be filed by said treasurer and entered upon the records of his office, and said record or affidavit shall be presumptive evidence of the completed service of notice herein required1. * * *” It is appellant’s contention that the only effect of the statute quoted is to fix tíre date of “completed service,” and set running the 60-day period: of limitation, which terminates -the right of redemption, and that the affidavit or .return of service by the officer or person making the service cannot be overcome by the testimony alone of the person served, citing Matchett v. Liebig, 20 S. D. 169, 118 N. W. 171; Burton v. Cooley, 22 S. D. 515, 118 N. W. 1028. In both the oases cited the evidence to' prove want of service and that to show service was presented in the farm, of conflicting and somewhat voluminous affidavits which were carefully analyzed’, and Mhe. conclusion reached that the preponderance of evidence was in favor of the party alleging service. In the case at bar the sole evidence of service was contained in the original affidavit which was opposed by the sworn testimony of plaintiff' in 'Open court, 'who was subjected1 to full cross-examin [57] ation by appellant’s counsel. Her testimony was positive and explicit, and if anything was made stronger upon Gross-examination. She was an interested witness, hut if her statements were beliievted by the trial court, they were sufficient to satisfy the rule announced' in the cases cited, which requires only clear and ■satisfactory prootf that nioi service wasi in. fact made. Nelson, who made the affidavit of service, was not called1 as a witness, nor was any attempt made to corroborate his affidavit or account for the aibsente of his evidence. No fact was disclosed, save that of interest in the result of the suit, which in any degree impeached oir lessened the credibility of plaintiff’s testimony. Her credibility was passed' upon by the trial court, and this court cannot say that her evidence was not clear and satisfactory. [3] A tax deed issued within three years without service of the required notice, is invalid. Berry v. Howard, 33 S. D. 447, 146 N. W. 577; Cain v. Ehnler, 36 S. D. 127, 153 N. W. 941. The judgment and order of the trial court are affirmed.