April 11, 1985

Mr. Roger Tellinghuisen 
Lawrence County State's Attorney 
78-80 Sherman Street 
Deadwood, South Dakota 57732

OFFICIAL OPINION NO. 85-18

Redemption from tax sale certificates

Dear Mr. Tellinghuisen:

You have requested the official opinion of this Office regarding the following factual situation:

FACTS: 

A husband and wife own jointly (either as joint tenants or as tenants in common) a piece of real estate.  During the course of divorce proceedings, wife comes in to the Treasurer's Office and pays up and brings current the delinquent taxes outstanding against the real estate.  Believing that it might be necessary to protect her interests, she requested and received a tax certificate from the Treasurer evidencing the wife's tax lien on this property. 

Sometime later as a result of the divorce proceedings wife gives to husband a Quit Claim deed conveying her interest in and to the property to the husband.  Wife still holds the Tax Certificate.

On the basis of this factual situation, you have asked the following questions:

QUESTIONS: 

1.  What effect, if any, does the Quit Claim deed have upon the continued validity of the wife's lien for the delinquent taxes that she paid?  (It can be assumed that this matter was not addressed in the divorce proceeding). 

2.  Must the Treasurer require husband to redeem the Tax Certificate before  allowing him to pay current year's taxes?

IN RE QUESTION NO. 1:

Your first question appears to involve purely a private controversy between individuals, that is the former husband and wife, and not to involve any state or county interest and is, therefore, not a proper subject for the official opinion of this office.

As to the status, generally, of a co-tenant who becomes a purchaser at tax sale of property held in co-tenancy I refer you to 72 Am.Jur.2d 233, State and Local Taxation §  940, et seq., also 20 Am.Jur.2d 171, Co-tenancy and Joint Ownership §  72 et seq.  As to the status of a purchaser at tax sale of real estate in this state, in Union Central Life Insurance Company v. Hoilien, 244 N.W. 116 (S.D. 1932) the Court stated 'when a purchase is made at tax sale by a private bidder, the tax is paid and the purchaser is entitled to a tax receipt.  The state and the local taxing district have no further lien upon the land for the payment of taxes.  On the other hand, if the county is a purchaser, the tax remains unpaid until redemption is made, the certificate is assigned, or the land is sold by the county after title is acquired by tax deed.  The sale of land to a county is merely a process for enforcing the collection of the tax.'  In Brown v. Warner, 107 N.W.2d 1 (S.D. 1961), an  action to determine adverse claims to real estate, the court stated 'It seems a well-recognized rule that one under a legal or moral obligation to pay the taxes is not in a position to become a purchaser at a sale made for such taxes.  A purchase made by one so situated is treated as a payment of the taxes.'

IN RE QUESTION NO. 2:

As to your second question, SDCL 10-23-22 provides that the purchaser at tax sale or assignee of such certificate may pay any taxes levied on such real estate so purchased, whether levied for any year or years previous or subsequent to such sale and still unpaid.  That section further provides that if the purchaser so informs the county treasurer when paying such taxes that he desires to pay them as subsequent to such certificate he may have the same lien for such taxes and may add them to the amount paid under the original tax sale certificate.  That section is permissive, and in no way limits the right of the county treasurer to accept payment of current taxes from the owner of the property.

SDCL 43-25-8 provides that a quit claim deed is a conveyance to the grantee, his heirs and assigns, of all right, title, and interest of the grantor in the premises described.  The lien of a tax sale certificate is,  arguably, an interest in the property conveyed.  The existence of the outstanding tax sale certificate, which has not been surrendered, is a colorable threat to the title of the husband.  The husband's remedy is through an appropriate court action.  Whether or not relief is sought or granted, and whether or not monies may be owing between the former husband and wife is of no consequence to the county treasurer in accepting payment of current property taxes.

The answer to your second question is 'no.'

Respectfully submitted,

Mark V. Meierhenry
Attorney General