CHAPTER 21-41

ACTIONS TO QUIET TITLE TO REAL PROPERTY

21-41-1    Action authorized--Purposes of action--Persons authorized to maintain action--Parties defendant.

21-41-2    Joinder of causes of action as to different tracts or parcels--Common interest required.

21-41-3    Request before action for quitclaim deed--Expense tendered--Costs and attorney fees.

21-41-4    Joinder of parties plaintiff.

21-41-5    Joinder of known claimants as defendants.

21-41-6    Joinder of unknown claimants as defendants--Proof of want of knowledge.

21-41-7    Filing of complaint and summons--Form for summons.

21-41-8    Service of summons on named defendants.

21-41-9    Service by publication on unknown defendants--Mail service not required--Effect of service by publication.

21-41-10    Validation of prior judgments based on personal service outside state--Rights barred by no action.

21-41-11    Contents of complaint.

21-41-12    Lis pendens notice filed with register of deeds--Constructive notice--Destruction of records.

21-41-13    Disclaimer by defendant to avoid costs.

21-41-14    Contents of defendant's answer--Counterclaim permitted.

21-41-15    Counterclaim for improvements to include value of land and improvements--Issue and findings on valuation.

21-41-16    Judgment on counterclaim for improvements--Payment for land on default by plaintiff.

21-41-17    Enforcement against property of claim against deceased defendant.

21-41-18    Jurisdiction of court to determine rights in decedents' estates.

21-41-19    Jurisdiction of decedent's estate from time of publication of summons.

21-41-20    Repealed

21-41-21    21-41-21. Obsolete.

21-41-22    Allowance of plaintiff's claim for improvements--Value alleged in complaint.

21-41-23    Judgment for defendant requiring payment for plaintiff's improvements--Payment for land on default by defendant.

21-41-24    Bond required to indemnify against defenses permitted after judgment.

21-41-25    Relief from default judgment--Rights of good faith purchaser preserved.

21-41-1. Action authorized--Purposes of action--Persons authorized to maintain action--Parties defendant.

An action may be maintained by any person or persons having or claiming to have an estate or interest in or lien or encumbrance upon any real property, whether in or out of possession thereof and whether such property is vacant or occupied, against any person or persons claiming an estate or interest in or lien or encumbrance upon the same or any part thereof for the purpose of determining such adverse interest, estate, lien, or encumbrance, and against all persons who appear from the records in the office of the register of deeds, the county treasurer, clerk of courts, or other public records in the county where such land lies to have or ever to have had any estate or interest in or lien or encumbrance upon such real property or any part thereof and against personal representatives, heirs at law, devisees, legatees, and creditors of any such person or persons who may be deceased, whether such personal representatives, heirs at law, devisees, legatees, and creditors be known or unknown, and generally against all persons unknown who may have or claim to have any estate or interest in or lien or encumbrance upon such real property or any part thereof for the purpose of quieting the title to such real property and of determining such estate, interest, lien, or encumbrance, and in such action any number of persons may be joined as plaintiffs, whether holding as tenants in common, joint tenants, partners, or in severalty, where the relief demanded in the complaint is common to all of such plaintiffs.

Source: CCivP 1877, § 635; CL 1887, § 5449; RCCivP 1903, § 675; SL 1903, ch 194, § 1; SL 1905, ch 81; SL 1917, ch 199; RC 1919, § 2846; SDC 1939, § 37.1501; SL 1945, ch 162.

21-41-2. Joinder of causes of action as to different tracts or parcels--Common interest required.

The plaintiff or plaintiffs may join in one cause of action as many tracts, parcels, or lots of real estate wherever situated within the state as they may elect, provided they all have a common interest in obtaining the relief demanded in all real estate included in the action and regardless of whether or not the interests of the defendants are common to all of such real estate.

Source: Supreme Court Rule 580, 1939; SDC 1939 & Supp 1960, § 37.1504.

21-41-3. Request before action for quitclaim deed--Expense tendered--Costs and attorney fees.

A person or entity is liable for costs, disbursements, and reasonable attorney's fees if the party seeking to quiet title is successful, and at least twenty days before bringing suit, the party seeking to quiet title:

(1)    Delivers to the person or entity, and requests the person or entity to execute and return, a quitclaim deed or other instrument necessary to divest the person or entity of an apparent adverse interest or right;

(2)    Tenders to the person or entity one hundred dollars for costs associated with the handling and notarization of the instrument; and

(3)    The person or entity refuses or neglects to comply with the request.

Source: SL 1913, ch 170; RC 1919, § 2867; SDC 1939 & Supp 1960, § 37.1523; SL 2024, ch 78, § 1.

21-41-4. Joinder of parties plaintiff.

Any number of persons may be joined as plaintiffs in an action brought pursuant to § 21-41-1, where one or more defendants are proper defendants as to all such plaintiffs, without regard to whether all plaintiffs have an interest in all real estate involved, and the finding of the court in said action that one or more defendants are proper defendants as to all such plaintiffs shall be conclusive upon that question; the provisions of this section shall be so construed that it will in no matter limit any rights which would have existed under § 21-41-1 as to the joinder of plaintiffs if this section had not been enacted.

Source: SDC 1939, § 37.1501 as added by SL 1945, ch 162.

21-41-5. Joinder of known claimants as defendants.

In such action all persons who have or claim to have or who appear of record to have ever had any interest or estate in, claim to, or lien or encumbrance upon the premises described in the summons and complaint or any part thereof or if dead, their heirs, devisees, legatees, personal representatives, or creditors or any or either of them, may be made defendants by name, if known.

Source: SL 1903, ch 194, § 2; SL 1905, ch 81; RC 1919, § 2847; SDC 1939 & Supp 1960, § 37.1505; SL 1995, ch 167, § 188.

21-41-6. Joinder of unknown claimants as defendants--Proof of want of knowledge.

If not known, the persons named in § 21-41-5 may be made defendants by designating them in the summons and complaint as, all persons unknown who have or claim to have any interest or estate in or lien or encumbrance upon the premises described in the complaint. In case unknown parties are so made defendants, the complaint shall state and the proof show that if there are any persons whomsoever who have any interest or estate in, claim to, or lien or encumbrance upon the premises other than the defendants named, they were unknown at the time of the commencement of the action.

Source: SL 1903, ch 194, § 2; SL 1905, ch 81; RC 1919, § 2847; SDC 1939 & Supp 1960, § 37.1505.

21-41-7. Filing of complaint and summons--Form for summons.

The action shall be commenced by the filing of a complaint in the office of the clerk of courts of the county in which the real estate or some part thereof is situated, and the issuance of a summons, which, after the title of the action, shall be substantially in the following form: The State of South Dakota, to the Above Named Defendants:

You are hereby summoned and required to answer the complaint of the plaintiff, which was filed in the office of the clerk of this court, at ________ in ________ county, South Dakota, on the ________ day of ________, 20__, and which prays for a judgment quieting the title to and the determination of all adverse claims against the premises described in the complaint, (or which prays for a judgment determining all interests in and liens against the premises described in the complaint as the case may be), situate in said county, to wit: ________, and to serve a copy of your answer to said complaint on the undersigned at their office in ________, within thirty days after the completed service of this summons upon you, exclusive of the day of such service; and if you fail to answer said complaint within that time, the plaintiff will apply to the court for the relief demanded in the complaint.

    _____________________________

    Attorneys for Plaintiff.

Source: SL 1903, ch 194, § 5; SL 1905, ch 81; RC 1919, § 2850; Supreme Court Rule 582, 1939; SDC 1939 & Supp 1960, § 37.1511.

21-41-8. Service of summons on named defendants.

The summons shall be served upon all defendants specified by name in the title to the action, either personally or by publication as provided by statute or rules of court for such service.

Source: SL 1903, ch 194, § 6; SL 1905, ch 81; RC 1919, § 2851; SDC 1939 & Supp 1960, § 37.1512.

21-41-9. Service by publication on unknown defendants--Mail service not required--Effect of service by publication.

The court may grant an order for the service of the summons upon defendants who are unknown, whether heirs, devisees, legatees, personal representatives, or creditors or any other unknown person, by publication upon the filing of an affidavit by the plaintiff, his agent or attorney, stating that if there are any persons other than those named as defendants in the summons and complaint who have or claim to have any interest or estate in or claim to, or lien or encumbrance upon the premises adverse to plaintiff, such persons are unknown. No deposit of a copy of the summons and complaint in the post office for unknown defendants shall be required, and service shall be complete as to all unknown defendants at the expiration of the publication of the summons as ordered and shall be taken and accepted as personal service on all parties unknown who have or claim to have any such interest, estate, claim, lien, or encumbrance in, to, or upon the property described in the complaint.

Source: SL 1903, ch 194, § 6; SL 1905, ch 81; RC 1919, § 2852; SDC 1939 & Supp 1960, § 37.1512; SL 1995, ch 167, § 188.

21-41-10. Validation of prior judgments based on personal service outside state--Rights barred by no action.

In any action to determine adverse claims to real property in the circuit court in which personal service was made of the summons or summons and complaint, on any nonresident defendant, in lieu of service by publication, by an officer of such foreign state and where proof of such service was made by the certificate of service of such officer making such personal service and judgment and decree was made and entered quieting the title to such real property, prior to January 1, 1992, such proof of service is hereby legalized and validated as fully as though such proof of service had been by affidavit. Any judgment or decree quieting the title to real estate based upon such proof of service shall be legal, valid, complete and effective as of the date on which said judgment and decree was filed, if otherwise properly signed and attested.

If any person has any vested right in any real property by reason of any omission referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1993, such right shall be forever barred. No action or proceeding brought involving real property shall be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with chapter 15-10.

Source: SL 1945, ch 166; SDC Supp 1960, § 65.0323; SL 1992, ch 307, § 7.

21-41-11. Contents of complaint.

In an action brought pursuant to 21-41-1 it shall be necessary for the plaintiff to state in his complaint in general terms only that he has or claims title in fee to the property, or a lien upon or interest therein as the case may be, which property must be described with sufficient certainty to enable an officer on execution to identify it; that the defendants are proper parties under the provisions of this chapter, and that the action is brought for the purpose of determining all adverse claims to such property and of quieting title thereto in the plaintiff, or of determining the liens or interest of all parties in and to such property, as the case may be. The plaintiff may also allege that he is entitled to the possession of the property and may allege any facts concerning the use and occupation and the rents, issues, and profits of the property and the value thereof which may be pertinent. The complaint shall also contain a prayer for the relief to which the plaintiff deems himself entitled, and shall call upon the defendants to set forth all their adverse claims to the property described.

Source: SL 1903, ch 194, § 3; SL 1905, ch 81; RC 1919, § 2848; Supreme Court Rule 581, 1939; SDC 1939 & Supp 1960, § 37.1507.

21-41-12. Lis pendens notice filed with register of deeds--Constructive notice--Destruction of records.

Immediately after the filing of the complaint in the circuit court, the plaintiff must record in the office of the register of deeds of the county or of several counties in which the property is situated, a notice of the pendency of the action, containing the title and object of the action and a description of the property to be affected thereby. From the time of filing the notice for record all persons shall be deemed to have notice of the pendency of the action. However, the register of deeds may destroy any record which the records destruction board, acting pursuant to § 1-27-19, declares to have no further administrative, legal, fiscal, research, or historical value.

Source: SL 1903, ch 194, § 7; SL 1905, ch 81; RC 1919, § 2853; SDC 1939 & Supp 1960, § 37.1513; SL 1981, ch 45, § 17.

21-41-13. Disclaimer by defendant to avoid costs.

If the defendant in an action to determine adverse claims disclaim in his answer any interest or estate in the property or suffer judgment to be taken against him without answer, the plaintiff cannot recover costs except as provided in § 21-41-3.

Source: CCivP 1877, § 636; CL 1887, § 5450; RCCivP 1903, § 676; RC 1919, § 2866; SDC 1939 & Supp 1960, § 37.1523.

21-41-14. Contents of defendant's answer--Counterclaim permitted.

The defendant in his answer must set forth fully and particularly the origin, nature, and extent of his claim to the property; and may set forth his rights in the property as a counterclaim and demand affirmative relief.

Source: SL 1903, ch 194, § 3; SL 1905, ch 81; RC 1919, § 2848; Supreme Court Rule 581, 1939; SDC 1939 & Supp 1960, § 37.1507.

21-41-15. Counterclaim for improvements to include value of land and improvements--Issue and findings on valuation.

Any counterclaim filed pursuant to § 21-14-5 must set forth, among other things, the value of the land aside from the improvements thereon, and also as accurately as practicable the improvements upon the land and the value thereof. Issues may be joined and tried as in other actions, and the value of the land aside from the value of the improvements thereon, and the separate value of the improvements, must be specifically found by the verdict of the jury, the report of the referee, or the findings of the court.

Source: CCivP 1877, §§ 642, 643; CL 1887, §§ 5456, 5457; RCCivP 1903, §§ 682, 683; RC 1919, §§ 2858, 2859; Supreme Court Rules 583, 584, 1939; SDC 1939 & Supp 1960, §§ 37.1517, 37.1518.

21-41-16. Judgment on counterclaim for improvements--Payment for land on default by plaintiff.

The judgment of the court upon such findings, if in favor of the plaintiff for the recovery of the real property, and in favor of the defendant for the counterclaim, shall require such plaintiff to pay to the defendant the value of the improvements as determined by such findings, within sixty days from the rendition of such judgment less the amount of the damages, if any recovered, for withholding the land and for waste committed upon said land by the defendant; and until such payment, or tender and deposit in the office of the clerk of courts in which such action is pending, no execution or other process shall issue in such action to dispossess such defendant, his heirs, or assigns; and in default of such payment by the plaintiff, the defendant shall pay to the plaintiff the value of said land as determined by such findings, and the damages, if any recovered, for withholding the same and for waste committed upon said land by him.

Source: CCivP 1877, § 644; CL 1887, § 5458; SL 1893, ch 68; RCCivP 1903, § 684; RC 1919, § 2860; SDC 1939 & Supp 1960, § 37.1519.

21-41-17. Enforcement against property of claim against deceased defendant.

Any creditor of any deceased person, made a party defendant to an action brought pursuant to § 21-41-1, may set forth in his answer, his claim against such decedent, and if the amount and validity of such claim be established upon the trial and it be also established that the estate of said decedent has never been administered and that the premises involved in the action are subject to the payment of such claim, such claimant may have judgment in the action for the amount of his claim and taxable costs against the premises involved in the action, and unless the same shall be paid by the plaintiff or some other party to the action having the right to pay the same within such time as shall be prescribed by the judgment of the court, said premises may be sold to pay the same, upon the notice and in the manner provided by law for sales of real property on execution.

Source: SL 1903, ch 194, § 8; SL 1905, ch 81; RC 1919, § 2854; SDC 1939 & Supp 1960, § 37.1506.

21-41-18. Jurisdiction of court to determine rights in decedents' estates.

The court shall have jurisdiction in such action to determine who are the heirs at law, devisees, and legatees of any deceased person who had in his lifetime any interest in or lien or encumbrance on the premises involved between themselves, as well as with respect to the rights of the plaintiff, and to make an adjudication upon the rights of such heirs, devisees and legatees and of all creditors of such deceased persons in and to such premises, which shall be valid and binding upon them and upon all the world, and if such heirs at law, devisees, and legatees of such deceased person and the creditors of such deceased person and the unknown defendants in said action, or any of them, shall fail to appear in such action and set forth and assert their interest in or claim to the premises involved, they shall be by the judgment and decree of the court forever barred and enjoined from thereafter claiming or asserting any title or interest in or lien or encumbrance upon or claim to the premises involved in the action.

Source: SL 1903, ch 194, § 4; SL 1905, ch 81; RC 1919, § 2849; SDC 1939 & Supp 1960, § 37.1508.

21-41-19. Jurisdiction of decedent's estate from time of publication of summons.

From the time of the publication of the summons, as directed in §§ 21-41-8 and 21-41-9, the circuit court shall have jurisdiction of the estate of any deceased person described in § 21-41-18, to make final settlement thereof, so far as may be necessary to a complete determination of the title to the premises involved, or of the interest or lien of any party or parties therein.

Source: SL 1903, ch 194, § 4; SL 1905, ch 81; RC 1919, § 2849; SDC 1939 & Supp 1960, § 37.1508.

21-41-20. Repealed.

Source: SDC 1939, § 37.1524 as enacted by SL 1947, ch 171; SL 1955, ch 136; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2021, ch 34, § 2.