Berry v. Howard

146 N.W. 577, 33 S.D. 447 (1914)

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Berry v. Howard

South Dakota Supreme Court
146 N.W. 577, 33 S.D. 447 (1914)

LJ

Facts

In March 1904, Eberhart Thomas died intestate. Thomas’s sole heirs were his sister, Mary Hall, and his three brothers. Following Thomas’s death, Hall took possession of Thomas’s 120-acre property located in Brown County, South Dakota. On March 25, 1908, Thomas’s property was sold by a treasurer’s deed at a tax-deed sale. On May 8, Thomas’s property was conveyed to Charles Howard (defendant). Albert Berry (plaintiff), acting as the administrator of Thomas’s estate, filed an action to quiet title. Berry identified a number of defects that occurred during the tax-sale conveyance that he argued rendered the sale invalid. Specifically, Berry contended that the treasurer did not provide proper notice of the sale as required under South Dakota law. Berry further stated that during a tax sale, notice must be provided to the owner of the land subject to the sale and also to either the person in possession of the land or, in the alternative, to the person who received the tax bills. In this case, the notice was addressed to Thomas, who was already deceased. Notice was also addressed to Hall’s son, who resided on Hall’s property, which was directly adjacent to Thomas’s property. No attempt was made to serve Hall as the party in possession, nor was any attempt made to identify the unknown owners. However, when Hall and her son ultimately appeared in court, the matter was dismissed as to Hall, and Hall retained her one-fourth interest in Thomas’s property. No attempt was made to determine who held the remaining three-fourths interest. Berry asserted that the deficiency in notice required the cancellation of the tax deed. The lower court found in favor of Berry, and Howard appealed the judgment.

Rule of Law

Issue

Holding and Reasoning (Polley, J.)

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