## Facts

- Eberhart Thomson died intestate on March 3, 1904, owning a 120-acre tract in Brown County, South Dakota.
- Thomson was unmarried and left as his only heirs one sister, Mary A. Hall, and three brothers (Halver Roass, Ole Silerud, and Martin Bjekness).
- After Thomson’s death, Mary A. Hall took possession of the tract and remained in possession until Albert Berry was appointed administrator of Thomson’s estate on December 29, 1908; Berry then took possession as administrator.
- The land was sold by the county treasurer in 1905 for unpaid 1904 taxes; a treasurer’s deed issued on March 25, 1908.
- The tax-title grantee later conveyed the property to Charles A. Howard on May 11, 1908.
- Before the tax deed issued, the tax-certificate holder attempted to give the notice required by § 2212 of the Political Code (notice of expiration of the redemption period and intention to take a tax deed).
- The notice was addressed to “Eberhart Tomson, otherwise known as Eberhart Thomson” as “the owner, person in possession and in whose name” the land was taxed, and also “to all other persons in interest.”
- The notice was served by the sheriff on Martin C. Hall, Mary Hall’s son, who lived with her on adjacent land; no attempt was made to serve Mary Hall as the person in possession, and the notice was also published.
- Berry, as administrator, brought an action to cancel the treasurer’s deed and quiet title, asserting defects in the tax proceedings, including defective statutory notice.
- In the trial court, the action was dismissed as to Mary Hall, leaving her one-fourth interest unaffected; the suit proceeded to challenge the tax title as against the remaining interests.
- The circuit court entered judgment for Berry canceling the tax deed as against the estate’s interests at issue and quieting title; Howard appealed from the judgment and the order denying a new trial.

## Issues

1. Whether the § 2212 notice of expiration of redemption and intention to take a tax deed was valid when it was addressed to a deceased owner and served on the possessor’s son rather than on the person in possession.
2. Whether a notice directed to a dead record owner and “all other persons in interest,” combined with publication, satisfies § 2212’s requirements for notice to the owner and to the person in possession (or other statutorily designated recipient).

## Decision

- The Supreme Court of South Dakota affirmed the judgment and the order denying a new trial.
- The court held that the statutory notice did not comply with § 2212 because it was addressed to Thomson, who was deceased, and it was not served on Mary Hall, whom the trial court found to be the person in possession at the time notice was required.
- Service on Mary Hall’s son did not constitute service on the person in possession contemplated by the statute.
- Because the required notice was defective, the treasurer’s deed could not cut off the interests being asserted through the estate, and cancellation and quiet-title relief were proper.

## Legal Principles

- A tax deed that depends on statutory notice is ineffective when the notice requirements set by statute are not met.
- As a general rule, the redemption-expiration notice must be addressed to the person upon whom it is to be served.
- A notice addressed to a deceased former owner does not satisfy a statute requiring notice to the owner and to the person in possession.
- Serving notice on a relative of the person in possession, rather than on the person in possession, is not service on the statutorily designated recipient.
- A generic reference to “all other persons in interest” does not cure failure to address and serve the notice on the persons the statute identifies.
- When statutory notice is not properly given, the resulting tax deed is subject to being set aside in a timely action to cancel the deed and quiet title.

## Conclusion

Because § 2212 required notice to be properly directed and served on the persons identified by statute, and the tax-certificate holder instead addressed the notice to a deceased owner and served it on the possessor’s son rather than the possessor, the notice was legally insufficient; the tax deed therefore could not divest the estate’s interests, and the decree canceling the tax deed and quieting title was affirmed.


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