(concurring specially). I concur in an affirmance of tbe judgment appealed from, on tbe sole ground that no legal notice of expiration of redemption was given, and consequently tbe tax deed under which tbe plaintiff claims title is void.
Tbe premises involved herein are lots 7, 19, and 20 of block 5 in tbe original town site of Minot. It appears from tbe certificates of tax sale offered in evidence upon tbe trial that these lots were sold as separate parcels at tbe tax sale held December 14, 1909, and that separate tax certificates were issued for each lot. Lot 7 was sold for $51.94; lot 19, for $38.53; and lot 20, for $42.50. On October 1, 1913, notice of expiration of time of redemption was issued by the county auditor of Ward county, directed to tbe defendant Minie Botz as tbe person in whose name sucb real estate then appeared of record *244in the office of the register of deeds of said county, and in whose name said real estate was assessed in the year 1908. The notice recites that said three lots were sold on December 14, 1909, at the annual delinquent tax sale held on that day, and that “the amount of the delinquent tax due upon the property aforesaid at the date of sale was $146.53, including penalty, costs, and interest, to make which amount the said property was then and there sold as provided by law, and a certificate of said sale was issued to the purchaser thereof.” The notice further states “that the owner and holder of the certificate so issued has presented the same to the undersigned as auditor of said county, and demanded a deed for said property as provided by law; and said certificate being and remaining unredeemed, and there being $910.98 due and unpaid thereon, including subsequent taxes for the years 1909, 1910, and 1911, penalties and interest, and there appearing no legal objection why a tax deed should not be issued as demanded. You are therefore notified that $910.98, exclusive of accruing costs, is necessary to redeem said property from said sale, and that unless the said amount and costs of this proceeding are paid on or within ninety days after the service of this notice upon you, a tax deed will be issued therefor as provided by law.”
The statute requires that the notice of expiration of time of redemption specify, among other things, the amount for which the lands were sold, and the amount required to redeem such lands from the tax sale. Comp. Laws 1913, § 223. This statute should be strictly construed against the party claiming title under a tax deed. Archer v. N. S. Tubbs Sheep Co. 25 S. D. 399, 126 N. W. 577.
The notice of expiration of time of redemption here under consideration does not specify the amount for which each lot was sold, or the amount required to redeem each lot, but it merely states the aggregate amount of the purchase price and the aggregate amount required to make redemption. Not only so, but the amount stated in the notice is eoncededly in excess of the aggregate amount actually due upon the tax certificates. The aggregate amount due thereon was only $839.60, or $71.88 less than the amount stated in the notice of redemption. It seems clear that the person to whom the notice was* addressed did not receive the notice contemplated and directed by the statute.' And, in my opinion, the irregularities and defects therein invalidated such *245notice and the tax deed subsequently issued. See 37 Cyc. 1402, 1403; G. F. Sanborn Co. v. Johnson, 148 Mich. 405, 111 N. W. 1091; Ambler v. Patterson, 80 Neb. 570, 114 N. W. 781, 117 N. W. 990; Haden v. Closser, 153 Mich. 182, 116 N. W. 1001; Jackson v. Mason, 143 Mich. 355, 106 N. W. 1112; John Duncan Land & Min. Co. v. Rusch, 145 Mich. 1, 108 N. W. 494.
Plaintiff’s counsel contend, however, that the court cannot go behind the tax deed and inquire into the sufficiency of the notice of expiration of redemption.' This contention is based upon § 2206, Compiled Laws 1913, which provides that a tax deed “shall be conclusive evidence of the truth of all the facts therein recited, and prima facie evidence of the regularity of all the proceedings, from the assessment and valuation of the land by the assessor up to the execution of the deed.”
Even though it be conceded that the legislature has the power to declare in advance that a recital in a tax deed, to the effect that notice of expiration of redemption has been given, although false in fact, shall nevertheless be conclusive evidence of its truth (and the existence of such power has frequently been questioned. See Adams v. Beale, 19 Iowa, 61; Cairo & F. R. Co. v. Parks, 32 Ark. 131; Miller v. Miller, 96 Cal. 376, 31 Am. St. Rep. 229, 31 Pac. 247; 12 Enc. Ev. 358, 359), the legislative intent to exercise such power should be expressed in language too plain and positive to admit of doubt. The legislature not only prescribed the evidentiary effect of the recitals in tax deeds, but in the same section of the statute it prescribed the form and language of such deeds.
The only recital required to be inserted in a tax deed relative to the notice of expiration of redemption (and this is the recital, contained in the tax deed involved in this case) is as follows: “The time fixed by law for redeeming the land having now expired, and proof of legal notice of expiration of the period of redemption having been filed in the office of the county auditor prior to the maturity of such certificate, as provided by law.”
It will be noticed that this recital does not purport to state as a fact that notice of expiration of redemption has been given, but merely that proof of such notice has been filed in the county auditor’s office. If it had been the intent of the legislature to make the tax deed conclusive evi*246dence of service of legal notice of expiration of redemption, it would doubtless have prescribed a recital in the tax deed in accordance with such intent. The recital which it did prescribe, however, manifests no such intent; but on the contrary indicates that the legislature considered the service of legal notice of expiration of redemption to be one of the steps in the proceedings, of whose regularity the tax deed is made prima facie evidence only.
I express no opinion upon the other questions discussed in the majority opinion.