(dissenting). I am unable to concur in the majority opinion. Believing that the reasoning therein is un*142sound in principle and wholly unsupported by any authority, and that the position taken is one from which this court will be driven to recede, I feel it proper to state somewhat fully the reasons for my dissent.
In a long line of opinions, commencing with that in the case of Bandow v. Wolven, 20 S. D. 445, 107 N. W. 204, this court has declared (what certainly has become the established law of this state) that section 2214, P. C., should be held to apply in all ■cases except where to so- hold would cause the owner of real property to be’ deprived of such property without due process of law, and that under such section mere lapse of the time therein named will cure a failure to do any act the doing of which might have been dispensed with -by the Legislature. In several opinions this court has declared what limitations should be placed upon the application of said section 2214, in order to conform to the rules thus announced in Bandow v. Wolven, and has refused to apply the provisions of such sections: (1) where the land was outside the taxing district wherein the taxing power had attempted to assess same; (2) where the land had not been assessed for taxes; (3) where the land was exempt from taxation; (4) where the taxes had been paid before tax sale; (5) where the land had been redeemed from tax sale before tax deed issued. Cornelius v. Ferguson, 23 S. D. 187, 121 N. W. 91; Gibson v. Smith, 24 S. D. 514, 124 N. W. 733.
In the case of Sobek v. Bidwell, 24 S. D. 469, 124 N. W. 431, decided by this court on the same day as was the case of Gibson v. Smith, supra, there was assigned the insufficiency of the evidence to support a finding that proper notice of expiration of time to redeem fromi tax sale had been given. The deed in that case was valid on its face, and being under our statute (section 2213, P. C.) -prima facie evidence of all facts therein recited (Bandow v. Wolven, 23 S. D. 124, 120 N. W. 881) we might, even if there had been no other evidence touching the notice and service thereof, have held that such deed was sufficient to support the finding. Instead of basing our decision on the probative force of such deed, we saw fit -to hold that, inasmuch as the tax deed was valid on its face and had been of record more than three years, a finding as to the giving of the notice was immaterial. This was the first time that this court was ever *143directly called upon to consider the question of the application of said section 2214 to a deed issued without proper notice of the expiration of time to redeem from the sale, and we held that we would not limit the application of such 'section further than we had in Cornelius v. Ferguson and Gibson v. Smith, supra. Such was the law of this state when the present appeal was taken, and, if our former opinion herein shall stand unchanged, we have reversed our holding in Sobek v. Bidwell, supra, and we have also abandoned the fundamental principles upon which the former opinions of this court were based, unless the majority of this court are correct in holding that to apply section 2214 to the facts of this case would result in talcing appellants’ property without due process of law. It will be noticed that the majority concede that the legislative power of this state might dispense with the giving notice of expiration of period of redemption.
Section 2214, supra, does not, in its terms, recognize any of those limitations upon its application that have been placed thereon -by the rulings of this court, arid its application should certainly not be restricted, and the will of the lawmakers thwarted, except where such restriction is necessary in order to prevent the taking of property without due process of law. A statute of limitations prescribing a reasonable time after which one claiming to be the owner of property is denied the right to bring- an action to recover possession of said property held under an apparent superior title, or to quiet his title as against such apparent superior title, cannot be held to deprive such claimant of his property without due process of law, if during such period of limitation the claimant has reasonable notice, either direct or constructive, of such claimed superior title. To hold otherwise would be to say that all statutes of limitations are.invalid because their effect is to deprive parties of their property rights without due proceess of law. When a tax deed is valid on its face, the record thereof not only gives notice of its grantee’s claimed title, but gives notice that such grantee, is in constructive possession of the property therein described, if such property is not in the actual adverse possession of some other party. Why, then, should not the statute operate as a bar in all cases where the deed is valid on its face? In some states there are statutes of limitations, similar to our section 2214, which specifically provide that, where *144a tax deed is sought to be attacked on one or more of the grounds mentioned in the five exceptions noted above, the action must be brought within a certain short period therein fixed. Why, then, has this and other courts held that a statute such as ours must be construed as not applying in any one of these five exceptional cases?
’ The fundamental reason is to be found in the following;. If the land does not lie in the taxing district wherein an attempt to tax it is made, or if the land is exempt from taxation, the taxing power of the state can acquire.no power or jurisdiction to impose a tax upon the land, and therefore can acquire no* jurisdiction over the land; if-there has been no assessment, the taxing power has never attempted to acquire jurisdiction over the land, and hence there is absolutely nothing upon which further tax proceedings can rest; if taxes assessed' are paid before tax sale, or the land redeemed after tax sale, all the jurisdiction of the taxing .power over the land terminates, and there is nothing upon Which further proceedings, be they otherwise perfectly regular, could rest. Without jurisdiction of the property, any action by the taxing power, such as the giving of a tax deed, is 'an absolute nullity. The recording of such a deed is of no more effect as a bar to an owner’s rights in his land than would be the recording of a deed, executed by A. and purporting to convey B.’s land, as a bar to B.’s right therein. The limitation statute applies wherever the taxing power has acquired jurisdiction over the-land, and such jurisdiction has not been terminated; and this regardless of how irregular may have been the exercise of such power.
A moment’s reflection discloses that there are only two ways by which the jurisdiction of the taxing power over a particular piece of property, when such jurisdiction has once been acquired, can ever be terminated; (i) By payment of the tax either before or after sale — which terminates the tax lien; (2) by the merging of the tax lien into a fax title. Any irregularity in the performance of, or any omission to take, any step which the statute requires to be taken after assessment, while .it may be of a nature to render voidable everything that depends thereon for its validity, and though it may render necessary the 'doing over of those things. that have been improperly performed, never re*145leases the land from the jurisdiction of the taxing power. Whenever there is lacking this fundamental requisite to all valid taxation — jurisdiction- of the taxing power over the particular land— -the landowner has a right t-o rest in absolute security, confident that no attempt will be made to enforce a tax against such land; but, whenever the taxing power has acquired and holds jurisdiction over his land, the landowner is put upon his .notice, and should at all times be upon his guard. He knows that in some form or other in the ordinary course of- events, either through regular or irregular proceedings, his land will appear upon the tax list and will eventually go to tax sale and deed. There is thus a clear distinction between the two- classes of cases, and one which fully justifies the court in holding that a statute worded as ■is our section 2214 should not apply where the fundamental requisite of jurisdiction in the taxing officers is wanting, but that it should a-pp-ly when, in i-ts inception, the tax proceeding was valid, thus giving the landowner notice and putting him upon guard to protect -his land against the enforcement of such taxes. Certainly one thus placed, who neglects to take -any steps to correct or challenge irregularity in the tax proceedings for a period of at least 3% years — the time necessarily elapsing between assessment and tax deed — and who then, after receiving at least constructive notice of the -issuance of a tax deed valid on its face, evidencing the regularity of all proceedings prior to its execution, and which -purports _to- be a conveyance by the state of the fee title to his land, fails for another 3 years to pay his taxes or to question the validity of the tax deed, cannot be heard to say that he has been deprived of his property without due process of law.
In New York, w-ith statutory provisions requiring the giving of notice of expiration of period of redemption, and giving to ■the former owner the right to redeem- until the period named in such notice expires, and with a statute held by the courts of that state to be a statute of limitations, there arose, in the case of Meigs v. Roberts, 162 N. Y. 371, 56 N. E. 838, 76 Am. St. Rep. 322, the very question now before us. That court used in part the following language, which will be found quoted as authority by the Supreme Court of the United States in Saranac *146Land & Timber Co. v. Roberts, 177 U. S. 318, 20 Sup. Ct. 642, 44 L. Ed. 786:
“The learned Appellate Division held that the failure to publish .a proper redemption notice was jurisdictional as to the conveyance of 1884, and hence not cured by chapter 448 of the Laws of 1885, and cited Einsign v. Barse, 107 N. Y. 329, 14 N. E. 400, 15 N. E. 401, and Joslyn v. Rockwell, 128 N. Y. 334, 28 N. E. 604, as authorities for' that proposition. We think the learned court took too narrow a view of the statute of 1883. This statute, though in some aspects a curative law, is primarily and essentially much more; it is a statute of limitation. It was distinctly held to be such in two decisions of this court (People v. Turner, 117 N. Y. 227, 22 N. E. 1022 [15 Am. St. Rep. 498] ; People v. Turner, 145 N. Y. 459, 40 N. E. 400), and by the Supreme Court of the United States (Turner v. New York, 168 U. S. 90, 18 Sup. Ct. 38, 42 L. Ed. 392). A curative act in the ordinary sense of that term is a retrospective law, acting on past cases and existing rights. The power of the Legislature to enact such laws is therefore confined within comparatively narrow limits, and they are usually passed to validate irregularities in legal proceedings, or to give effect to contracts between parties which might otherwise fall for failure to comply with technical legal requirements. Cooley, Const. Lim. p. 454. * * * But there may be in legal proceedings defects which are not mere informalities or irregularities, but so vital in their character as to be beyond the help of retrospective legislation; such defects are called jurisdictional. This principle does not apply to a statute of limitations, for such a statute will bar any right, however high ■the source from which it may be deduced, provided that a reasonable time is given a party to enforce his right. Terry v. Anderson, 93 U. S. 628, 24 L. Ed. 365; People v. Turner, 145 N. Y. 451, 40 N. E. 400.”
See, also, Leffingwell v. Warren, 2 Black, 599, 17 L. Ed. 261.
The Supreme Court of our sister state in Nind v. Myers, 15 N. D. 400, 109 N. W. 335, 8 L. R. A. (N. S.) 157, in a remarkably able opinion, has clearly distinguished between incurable jurisdictional matters and. those matters which are jurisdictional only in the sense that the Legislature has declared that the regularity *147of future proceedings depends thereon, and has pointed out why statutes of limitation, such as our section 2214, have no application where the jurisdictional defects are incurable in their nature, but have full application where the defect or omission is in a failure to -do something which the legislative power could have waived.
The giving of the notice is a mere statutory requirement, one that formerly did not exist in this state, and one which the Legislature has complete control over. It certainly was within the power of the Legislature, when providing that a notice be given, to provide the effect of failure to give such notice; therefore the Legislature had the power to say that no person could take advantage of such failure to give notice, unless he moved within a certain fixed period. It will not do to say that section 2212 should be held as controlling over section 2214 because enacted later. These sections were re-enacted together as a part of the Revised Code of 1903. Under numerous holdings of this court, these sections then, if not before, were placed upon a parity. It was some eight years later that, at appellants’ request, the trial court vacated a default decree herein and allowed appellants to answer.
Since the handing down of our former opinion, this court virtually reaffirmed its opinion in Sobek v. Bidwell, supra, when, in McKinnon v. Fuller, 33 S. D. 583, 146 N. W. 910, we held:
“That the bar of the statute (section 2214, P. C.) covers every act required on part of taxing officers and of the holder of the certificate which precedes the execution' of the tax deed.”
A most cursory reading of the opinion in McKinnon v. Fuller will prove that my colleagues are in error in holding such opinion in harmony with their opinion herein. It was clearly pointed out therein that the only reason why the statute of limitations did not apply to the facts of' that case was because, under the express provisions of the law, the filing of proof of service of notice of expiration of period of redemption was a prerequisite to title passing under a scavenger tax sale certificate, and that until title had apparently passed the period of limitation did not start to run.
There is another reason why the judgment of the trial court should be affirmed, and one in no manner involving the application of section 2214 to the facts of this case. My colleagues have *148called attention to the fact that section 2212, P. C., being chapter 151, Laws 1890, was borrowed from the Code of Iowa, and that, “under the well-recognized rule of statutory construction, the adoption of the statute in this state was an adoption of the construction that had been put upon it” by the court of Iowa. The Supreme Court of Iowa in Bowers v. Hallock, 71 Iowa, 218, 32 N. W. 268, and Slyfield v. Barnum, 71 Iowa, 244, 32 N. W. 270 (both decided before the year 1890), and in decisions since then, has always held that a tax deed given without notice was not void, but passed the legal title, leaving with the former owner the equitable right of redemption. The Iowa court has thus at all times recognized that a failure to give notice of the expiration of period of redemption did not oust the taxing power of jurisdiction of the property, and therefore of the power to convey title to the same, but such court has merely held that the right to redeem from such sale was not cut off by the giving' of such deed. The Iowa court has held that this right to redeem was a right which appellants could enforce by proper equitable action. Slyfield v. Barnum, supra; Slyfield v. Healey (C. C.) 32 Fed. 2. If section 2212 was adopted from Iowa (and a comparison of such section with section 894, Code Iowa 1873, would seem to prove such adoption), and if, toy adopting such section, we adopted the construction placed thereon by the -courts of that state, then we adopted the rule -that a deed given without the notice provided by such section is not void, but operates to transfer -title to- the grantee, subject to be defeated by the exercise -of the right of redemption. My -colleagues should not blow hot and cold — hold that we have adopted the construction placed upon this section .by the I-o-wa -court, and in- the next breath reject the reasons given by such court for its holding. Under the holdings o-f the Iowa courts, .appellants’ legal title has gone. They would have no defense in a -common-law action of -ejectment. Their only remedy, was an action brought seeking a decree allowing redemption; or, when respondent sued to quiet title, a right to interpose a counterclaim recognizing the l-egal title o-f- respondent, but seeking equitable relief by way of redemption. Coulter v. Stafford (C. C.) 48 Fed. 266. They have not sought any such -equitable relief, but have.relied solely on the claimed- superiority of their legal title, when, even- under the Iowa decisions, such legal -title has passed *149from them. Moreover, their right to equitable relief has long since been barred by section 66, C. C. P.
It is well to- bear in mind the undisputed facts. Gustave Lehmann, then the fee owner of' .this land, died in 1890, leaving appellants his only heirs. This land was sold in 1890 for the 1889 taxes thereon. The -holder of the tax sale certificate gave notice, in 1892, that the period of redemption would expire and tax -deed -issue; but this notice was addressed to Gustave Leh-mann, then deceased. Proof of service of such notice was filed in the treasurer’s office, and no claim is made but that there is sufficient evidence to support a finding that the purported service was such as would have been valid if Gustave Lehmann had then been living. The treasurer was apparently justified in executing the tax deed, which was -executed and recorded in- September, 1893. The holders of such tax title -either .paid the taxes on said land or redeemed such land from tax sales for all the years subsequent to 1889 down to- and including the tax for 1898. Respondent, after he acquired the tax title, was in possession of and paid the taxes on said land during each and every year from 1899 down to and including the year 1909; all such possession and payments antedating appellants’ appearance in- this action. This action was commenced in October, 1903, and judgment by default was taken by respondent. Upon application of appellants, such judgment was vacated- and they were permitted to defend in June, 1911. The appellant Alma Lehmann reached her majority in July, 1907.
From the -above facts it clearly appears that, at the time the default was -opened- and appellants allowed to defend, respondent, even though -his tax -deed had been absolutely void, had acquired, under section 54, C. C. P., through possession and payment of taxes, a perfect title to an undivided one-half of the land as against W’ilhelmina Fhrler. He would also- have acquired such a title as against A-lma Lehmann, ¡if it were not for section 56, C. C. P., which gave to her a right of action to recover possession, as against one claiming under section 54, until she arrived- at the age of 24 years. But respondent not only claimed title under section 54, but -he held the legal title by virtue of his tax deed, and this regardless of possession and payment of taxes. -The, right of appellants to bring an action to redeem from the tax sale *150expired — as to one appellant, under section 66, C. C. P., before respondent brought his action; as tq the other appellant, under section 66, supra, as modified by section 70, C. C. P., in July, 1908, or some three years before she was allowed to answer herein. Appellants’ right to equitable relief by way of counterclaim depends upon whether such right existed at the time the counterclaim was interposed, and not whether it existed at the time action was brought — they must have had a subsisting cause of action típon which they could at that very time have maintained an independent action. Appellants, evidently recognizing that, even under the Iowa decisions, they were barred of their right to' redeem by the statutes of limitation, did not seek such equitable relief, but relied solely upon their claim that plaintiff’s tax title was void — a position absolutely unsupported by any authority.
My colleagues have taken occasion to point out why respondent 'has no cause to> complain of the conclusion reached by them. They state that the records in the tax proceedings advised him of the lack of proper notice of taking out of deed. Such is not the fact. The records in the treasurer’s office absolutely failed to show any defect in the notice or service thereof. Respondent had ever reason to suppose his title good. From the date of the tax sale the former owners had failed to pay any taxes; the taxes had been paid or redeemed by his grantors; he took actual possession of the land and paid taxes for several years before he brought this action,; he remained in possession and paid taxes until 20 years had elapsed, during which the former owner and those claiming under him had never paid any taxes or made any claim to the land — in fact, until he had acquired an additional title, as against one appellant, through possession and payment of taxes, and until both appellants had become barred of any right of redemption from the tax title which he held. Then, when his rights had become absolute, and appellants had even lost the quitable right to redeem, they seek to attack the. validity of his title. A more unjust and inequitable decision than that of the majority of this court could hardly be imagined. It can but *151tend to destroy confidence in the stability of' titles to real property in this state.
McCOY, P. J., concurs in the views expressed by WHITING, J.