STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

April 18, 1968

Bernard Linn
Commissioner of School & Public Lands
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 67-68 pg. 468

Commissioner of School and Public Lands. Construction of Statutes SDC 1960 Supp. 15.0308 and SDC 15.0312 relating to contract of sale of school lands.

You submitted to this office the following letter of inquiry:

“May we have your valued official opinion upon the following:

“Following payment in full of a Contract of Sale of School Lands, this office requested the purchaser of the tract of land to forward his copy of the Contract of Sale or execute an affidavit of lost contract in lieu thereof.

“Today, we received in the mail, an affidavit of lost contract, executed by the wife of the original purchaser, together with a Warranty Deed and a certified copy of the Death Register.

“The Warranty Deed was dated February 8, 1960.

“The Death Register shows the date of the death of the purchaser as being March 23, 1967.

“The Warranty Deed was recorded in the office of the Register of Deeds March 30, 1967.

“Subsequent to the execution of the contract, Chapter 48 of the 1949 Session Laws was enacted and became effective July 1, 1949, and is now cited as SDC 1960 Supp. 15.0308, and provided in part that:

“ ‘Any assignment of any rights under such contract, or conveyance of any interest in the lands therein described, shall be of no force or effect, unless or until such assignment or conveyance be first approved, in writing, by the Commissioner of School and Public Lands.’ ”

“Of course, at the time the Warranty Deed mentioned above presumably was executed, the contract holder had only a color of title and had nothing to warrant, and even if the Warranty Deed had been a legal transfer of title to the real estate, it was not approved by the Commissioner.”

The questions are:

“1. Can any Warranty Deed be accepted and approved by the Commissioner as an assignment of an unpaid Contract of Sale?

“2. Can a Quit Claim Deed be accepted and approved as an assignment of an unpaid Contract of Sale?

“3. Does the Commissioner now at this late date have the authority or duty to approve the unrecorded Warranty Deed as an assignment?

“4. If he does so, would the provisions of SDC 15.0312 and the specific requirements in case of the death of the original contract holder be circumvented?

“5. Would the circumstance be altered if a Warranty Deed recorded prior to the death of the maker, the original purchaser, were submitted to the Commissioner subsequent to the death of the original purchaser, as an assignment to be approved by said Commissioner?”

SDC 15.0312 provides that:

“15.0312 Patent on completion of contract payments: duty of Commissioner; successors to interest of original purchaser; records; homestead rights. When full payment had been made for any tract sold, and not before, a patent for such tract executed in the name of the state by the Governor, and attested by the Commissioner, under the seal of his office, shall be made out and delivered by the Commissioner to the auditor of the county in which the land is situated, for the person entitled thereto. Such patent shall run to the original purchaser, if he be living and his interest in the land has not been assigned, but, in case a legal transfer of his interest has been made, such patent shall run to the actual owner of such interest, as may appear from documentary evidence approved by the state’s attorney, treasurer, and auditor of the county in which the land is situated, the same to be filed with the application for the patent. In case of the death of the original purchaser or his assignee, a patent shall not be issued until a court of competent jurisdiction shall have ascertained and adjudged the person entitled thereto and a certified copy of the decree or order of such court shall have been filed with the application for patent.”

SDC 1960 Supp. 15.0308 has not been amended in any manner, except approval of conveyance of assignment required, as stated in Paragraph 6 of your letter, which reads in part as follows:

“Should the Governor approve the sale, he shall certify to such approval upon the contract, and the Commissioner shall thereupon execute the same. One copy of such contract shall be filed in the office of the Commissioner, and the other shall be forwarded to the county auditor to be delivered to the purchaser after the expiration of sixty days from the date of sale.

“Any assignment of any rights under such contract, or conveyance of any interest in the lands therein described, shall be of no force or effect, unless or until such assignment or conveyance be first approved, in writing, by the Commissioner of School and Public Lands.”

In construing the provisions of SDC 15.0312, one of my predecessors rendered an opinion that the assignee of incompleted sale contract from distributee in a final decree was not required to be adjudged as being entitled to a patent. (See 1947-48 AGR 275).

It was held in this opinion that it was not necessary that the commissioner have an additional order of a competent court naming the person entitles to patent as required by SDC 15.0312. The opinion reads in part as follows:

“ ‘In case of the death of the original purchaser his assignee, a patent shall not be issued until a court of competent jurisdiction shall have ascertained and adjudged the person entitled thereto.’ ”

“The decree of distribution assigning the contract to the husband is and adjudication that he is the owner of the contract, entitled to all rights flowing therefrom and entitled to the patent upon compliance with the contract. He may either complete the contract or dispose of it as he may desire: The statute does not mean that a purchaser or assignee of the contract from the person adjudicated to be entitled thereto must in order to obtain a patent be likewise adjudged by a court of competent jurisdiction to be entitled to a patent on compliance with its terms. The statute may be somewhat misleading in its phraseology, however, to hold otherwise that as above indicated would be to indulge in a process of reasoning wholly inconsistent with the obvious design of the statute which is to assure that on death of the original purchaser the contract passes to the person or persons entitled thereto by laws of descent.”

I draw your attention to an opinion of this office dated September 17, 1946 reported in the 1945-46 AGR 401, which held that patent issues to holder of interest in land required by quit claim deed. This opinion reads in part as follows:

“The interest acquired in land under such a contract is alienable and is so recognized by the Statute (SDC 15.0312) wherein the following language is used:

“ ‘…Such patent shall run to the original purchaser, if he be living and his interest on the land has not been assigned, but, in case a legal transfer of his interest has been made such patent shall run to the actual owner of such interest, as may appear from documentary evidence approved by the State’s Attorney, treasurer and auditor of the county in which the land is situated, the same to be filed with the application for the patent…’ ”

Question No. 1 is answered in the AFFIRMATIVE.

Question No. 2 is answered in the AFFIRMATIVE.

Question No. 3 is answered in the AFFIRMATIVE.

Question No. 4 is answered in the NEGATIVE.

Question No. 5 is answered in the NEGATIVE.