CASES ARGUED AND DETERMINED

IN THE

SUPREME COURT

OF THE

State of South Dakota.

BENNETT V. DARLING et al.

1. Under Comp. Laws, § 5449, providing that an action may be brought against any person claiming an interest in real estate adverse to plaintiff, a complaint in a suit to quiet title is sufficient to state a cause of action which alleges that plaintiff is the owner and in possession under a tax deed, and which sets out the proceedings culminating in the tax sale, and alleges that the defendants claim title though conveyances and mortgages from prior owners, but that plaintiff's title is superior thereto.

2. Where the objection in a suit to quiet title that the tax deed on which plaintiff relies is invalid on its face is presented by an objection to its introduction in evidence, it may be considered on appeal, though the appeal is from the judgment alone, and the evidence is not in the record.

3. Separate parcels of land sold for taxes to the same person may be included in the same deed, either at common law, or under Laws 1891, Chap. 14, § 110, expressly authorizing such practice.

4. The inclusion of several separate tracts of land sold for taxes to the same person in one deed does not raise a presumption that the land was sold in gross, instead of in separate parcels.

5. Where the complaint in an action to quiet title by a taxpayer alleges the proceedings leading to the tax sale, and the defendants deny all allegations concerning the assessment of taxes, on information and belief, the pleadings put the validity of the assessment in issue, and authorize a reference to determine the taxes properly chargeable against the land.

6. The defendants in a suit to quiet a tax title who are defeated cannot complain of the action of the court in giving them an opportunity to secure the cancellation of the tax deed by paying the taxes, interest, and costs.

(Opinion filed June 12, 1901.)

Appeal from circuit court, Hughes county. HON. LORING E. GAFFY, Judge.

Action by Cassius C. Bennett against Charles W. Darling and others to quiet a tax title. From a judgment in favor of plaintiff, certain defendants appeal. Affirmed.

The facts are stated in the opinion.

J. E. Robinson, for appellant.

All essential steps leading up to a valid tax must be alleged and proven by the party seeking to enforce the tax. Comp. Laws, Sec. 1643; O'Neil v. Tyler, 3 N. Dak. 47, 61; Swenson v. Greenland, 4 N. Dak. 532; Salmer v. Lathrop, 10 S. D. 216, 227.

The tax deed is void on its face, because it embraces several distinct lots, purporting to have been sold en masse for gross consideration. Salmer v. Lathrop, 10 S. D. 216, 225. Such sales are clearly and unquestionably void. O'Neil v. Tyler, 3 N. D. 47, 52; Power v. Larabee, 2 N. D. 141, 148; First National Bank v. Roberts, 79, N. W. Rep. 1050; Black on Tax Titles, Sec. 123; Cooley on Taxatation, (2nd. Ed.) 493, 494.