POKKEY, J.
[1] In this case a rehearing was granted for the sole purpose of examining into the effect upon the tax deed-involved of the limitation contained in section 2214, Pol. Code. Our former decision is reported in Cain v. Ehrler et al., 33 S. D. 536, 146 N. W. 694, to which reference is made for a statement of -the facts. involved in the case. It is conceded that the notice required by chapter 151, Raws 1890, was not served before the deed was executed, and we held in the former opinion, that, because said notice had not been served, the limitation found in section, 2214 did not bar appellants’ right to assert their interest in the real property affected by -said deed. In so holding, respondent contends that we overlooked .the former decisions of this court wherein respondent claims a different conclusion is reached — contending that this court has repeatedly held that a tax deed, fair upon- its face, could not be assailed by the former owner of the land affected thereby, more than three years after said deed had been, recorded, because notice of -the expiration of the period of redemption had not been given prior to the execution of such deed. Respondent contends that the rule -established by these decisions- has become a rule of property, upon which numerous parties have relied, and under which title to real property has been acquired. In- support of this contention-, they cite the following decisions of this court: Bandow v. Wolven, 23 S. D. 124, 120 N. W. 881; Lauderdale v. Pierce, 27 S. D. 460, [130]*130131 N. W. 514; Cornelius v. Ferguson, 23 S. D. 187, 121 N. W. 91; Gibson v. Smith, 24 S. D. 514, 124 N. W. 733; Northwestern Mtg. T. Co. v. Levtzow, 23 S. D. 563, 122 N. W. 600; Sobek v. Bidwell, 24 S. D. 469, 124 N. W. 431.
[2] It is true that, in at least some of these cases, the court used language that lends some color to respondent’s position ; but, in determining whether any decision is an authority upon a given proposition of law, it is necessary- to ascertain the exact point that was- under consideration when that decision was rendered. This rule is expressly emphasized and pointed out in Bandow v. Wolven, 20 S. D. 445, 107 N. W. 204. At the very outset it may be said that in none of the cases cited by respondent did this -court hold that an action to set aside a tax deed that had been executed without the service, of the notice of expiration of the right of redemption is barred by the three-year limitation; nor did it appear in any of those cases that such notice had not been served. In Bandow v. Wolven, on its first hearing (20 S. D. 445, 107 N. W. 204) the court, in discussing the treasurer’s sale of land for delinquent taxes, used the following language:
“The law required the notice of sale' to be published ‘once a week for three consecutive weeks commencing the first week in October preceding the sale,’ * * * The notice required by statute was not given, an irregularity which certainly would have invalidated the sale had timely objection been made. Is it now available? We think not. The owner of the land cannot be heard to say -that he did not know the law. He knew that his land was subject to taxation, that it was assessable every year, that no demand for taxes was -necessary, that they -became delinquent on the 1st day of March of the year after they were levied, and that if they were not paid it was the duty of the treasurer to sell his land to satisfy the same on the first Monday in November. The time of the assessment, levy, and sale was prescribed by the statute. The law itself gave notice of the time and place of sale. The Legislature might have dispensed with further notice. It has declared that no action shall be commenced by the former owner or by any person claiming under him to recover possession of land which has been sold and conveyed by deed for nonpayment -of taxes, or to avoid such deed, unless such action shall be commenced within three years after the recording [131]*131of such deed. The declaration is comprehensive and unqualified. No doubt exists as to the legislative intent. By the terms of the statute no defects in tax proceedings are excepted from the operation of the limitation; none should be recognized by the courts, except such as are required to prevent owners from being deprived of their property without due process of law. The legislative will should prevail to the fullest extent possible. It is the owner’s duty to pay his taxes when they become due. He knows the consequences of failure to do so, the effect of the special limitation, and has no cause to complain; ample opportunity being afforded for the protection of his rights. If no published notice of the sale was necessary, certainly a defective one should not be regarded as a jurisdictional defect. There was no want of power. It may have been irregularly pursued, but the irregularity was waived by the owner’s failure to' assert his rights within the period prescribed by the statute, and that period is neither unjust nor unreasonable.”
Keeping in mind that it was the notice of treaHirer’s tax sale the court had under consideration, and not the notice of expiration of the period of redemption, this is a correct statement of the law, because the law itself fixes the time, place, and manner of doing every act necessary to be done by the taxing officers to charge real property with a lien for the taxes, and the law itself is a continuous notice to property owners of all these facts. The property owner knows that his land is subject to taxation, that it is assessable annually, that no demand for taxes is necessary, that prior to 1913, taxes became delinquent on the 1st day of March following the levy, and that, if said taxes are not paid, the treasurer will sell the land in November; and, being advised by law of all these facts, he is in no' wise prejudiced by the failure of the treasurer to give the statutory notice of the sale. But the court proceeds further, and, in discussing the return to the notice that tax deed was about to issue, said:
“What has been said regarding the tax sale notice applies with equal force to the contention that the return of the published notice, required before the deed was issued, does not show that the owner of the land was a nonresident. Assuming the record to be defective in this respect, and that the defect was such as to invalidate the sale before the expiration of the special limitation, [132]*132it is not now available, because- such a notice might have been dispensed .with altogether, without depriving the owner of his property without due process of law.”
This statement, so far as it applies to the notice that the tax deed is about to issue, is mere dictum, for it was not the giving of such notice that was then under consideration.
What is true relative to the treasurer’s notice of sale is by no means necessarily true relative to the notice of the expiration of the period of redemption. While the law -imports to a property owner knowledge that his property is subject to taxation, that it is assessable annually, that no demand for taxes is necessary, that his taxes will become delinquent if not paid within a certain time, and that the land will be sold to> satisfy the same, it does not purport to charge him with knowledge that a tax deed will issue at the end of two years after the sale, or at any other time until he -has been given statutory notice thereof; and it expressly and affirmatively says to him that his right of redemption shall not expire until sixty days' after he has been, given such notice and proof of service is filed with the county treasurer. The statutory provisions relative to the two notices are radically different. While the -statute merely requires the publication of the notice of sale, without declaring what the consequence will be if-such notice is not given, it goes further in regard to the notice of expiration of the right of redemption, and declares that the right of redemption shall continue until the notice is given.
On a second hearing of Bandow & Wolven (23 S. D. 124, 120 N. W. 881) this court qualified its former opinion in the following manner:
"Bor- the reasons hereinafter stated, we do not think the determination of the question of whether complying with the statute in regard to notice of expiration of period toi redeem from tax sale and of intention, to take out tax deed is a jurisdictional matter becomes essential to the decision of .this cause, and we prefer to modify the former -decision of this court to the extent of not determining that point; but in so -doing we wish it understood that we do not hold such decision wrong, but sim-ply leave the determination of this question, to such time as it may become essential to the decision of some cause -before this court.”
This leaves the question wholly unsettled and- deprives that [133]*133case of any value it might otherwise have had as a precedent in this case. It also indicates, as plainly as it possibly can, that up to that time the court considered the matter of the notice of the' expiration of the period of redemption as an open and unsettled question, and renders all former decisions that are broad enough to include the question valueless as authority. But it goes further, and expressly announces that the question shall remain and be considered as undetermined until “such time as it may become essential to the decision of some case before this court.”
In neither Cornelius v. Ferguson, Northwestern Mtg. T. Co. v. Levtzow, Lauderdale v. Pierce, nor Gibson v. Smith, cited by respondent, was the question of notice of expiration of the period of redemption involved or in any wise considered by the court, and therefore they cannot be considered as authorities on that question. In Sobek v. Bidwell the question of notice was presented upon an assignment of error alleging the insufficiency of the evidence to sustain the following finding of fact by the trial court:
“That after the expiration of the period of redemption from the tax sale the holder of the certificate caused notice to be served upon the owner of the land.”
And this court, without discussion, and apparently without any consideration of the question presented by the assignment, treated it as having been already disposed of by the court on the first hearing of Bandow v. Wolven (20 S. D. 445, 107 N. W. 204), Cornelius v. Ferguson, supra, and Gibson v. Smith, supra; but, as we have already seen, Bandow v. Wolven was so far modified on the second hearing (23 S. D. 124, 120 N. W. 881) that it does not purport to -pass upon or dispose of the question involved, and in the other two cases the question was not involved nor considered at all.
Many cases from other courts are cited by respondent, and some of them appear to sustain his position; but it does not appear that any of these cases were decided under a statute like ours. What would be a mere irregularity under one statute might amount to a fatal defect under another; and, as is said in Bandow v. Wolven, 20 S. D. 445, 107 N. W. 204:
“The question must be determined in each particular case with reference to the laws of the jurisdiction in which it arises.”
[134]*134With this rule in mind, we must turn to the statute itself, or to decisions that have been rendered under a similar statute, for light upon the subject. As was stated above, our statute not only requires that the notice be given before the deed is executed, but it expressly provides that the right of redemption shall remain intact until such notice is given. In other words, the statute says, in the most unequivocal terms, that the right of redemption can be terminated in no way except by the service of the notice. The question then becomes: May a property owner be deprived of this right by the unauthorized and illegal act of a county treasurer in executing a tax deed, or may he rely upon the express provisions of this law for the protection of his property.
It is argued by respondent — and with much plausibility — that a man ought to pay his taxes when they become due, that he knows what 'the consequences will be if he does not pay, and that he has no right to complain if his land is sold when he fails to pay within the time allowed for that purpose. This may all be true, and yet a property owner cannot be penalized nor be deprived of his property for using all the time the law allows him for the payment of his taxes. The law fixes the time when taxes shall become due, and when they shall become delinquent; but it also, in effect, says to the property owner that, upon the payment of a certain penalty and interest, he may extend the time of payment to the time of the annual tax sale. If he does not pay before the time fixed, for sale, his land is sold, but he is still given the right to redeem; and, for this .purpose, the law says, to him that he may take at least two years, and after that until such time as he is given notice that his right is about to- expire, and that a deed will issue unless he pays within a fixed period of time after receiving such notice. It would not be contended for a minute that a tax deed issued less than two years after the sale would put the three-year statute in operation; yet the situation is exactly the same where a deed is issued without notice more than two years after the sale, for it must be borne in mind that the two-year period within which the treasurer is prohibited from executing a deed is not a limitation upon the property owner’s right of redemption, but merely fixes a minimum period within which his right of redemption can in no event be cut off. The law does not merely require the giving of notice before the tax [135]*135deed can issue. It expressly extends to the property owner the right of redemption until such time as the notice is given. The right of redemption then becomes a vested property right, and one of which he can be legally deprived only in the manner provided by law, to-wit, the giving of the notice. The law, by its terms, gives to the notice the dignity of process of law, and to deprive him of his property, without giving him this notice, is to deprive him of his property without due process of law. The giving of this notice is just as much a prerequisite to' the issuance of a tax deed that will bar the right of redemption as the service of a summons is a prerequisite to the entry of a valid judgment.
In the former opinion in this case it is said that a county treasurer is without jurisdiction to issue a tax deed until the notice of expiration of the period of redemption has been served. This declaration of law is vigorously assailed by respondent on the rehearing; and in support of his position it is contended that the service of the notice could, have been dispensed with by the Legislature without depriving the property owner of any of his constitutional rights, and that, therefore, the failure to give the notice does not affect the treasurer’s. jurisdiction to issue the deed. This conclusion by no means necessarily follows. That the Legislature could have dispensed with this notice cannot be questioned. But, with the exception of two particular acts, as much can be said of all the other proceedings leading up to the divesture of the property owner’s title for the nonpayment of taxes. The Legislature could, by statutory enactment, -have provided that all lands should be assessed for taxation; that a tax should be levied, fixing the time within which it must be paid; 'and provided that, if such tax were - not paid within the time so' limited, title to the land should at once, and without further proceeding, vest in the state. This would have dispensed with the notice of sale and with the sale itself, as well as all subsequent proceedings leading up to the execution of the deed; yet no> constitutional right would have been invaded. But it does not follow that a requirement that might have been dispensed with by the Legislature may be disregarded by the county treasurer without affecting the validity of a tax deed.- While courts have frequently been called upon to declare whether a particularly designated act in' a legal proceeding is or is not jurisdictional, [136]*136they do not seem to have attempted a general definition of the term “jurisdictional.” Under the statute, the giving of the notice of the expiration, of the right of redemption is made a condition precedent to. the execution of the deed. It is the treasurer’s authority for the execution of the deed. In fact, conceding a legal sale to have been made, the giving of the notice and the filing of a proper return thereto' are his only authority for executing the deed. In other words, the giving of the notice is absolutely essential, and therefore jurisdictional. This would be true even without that clause in the law which provides that:
“Until sixty days after the service of said notice, the right of redemption from such sale shall not expire.”
But, in view o£ this clause, it seems absolutely clear that it was the intent of the Legislature that the right of redemption from the tax sale could be terminated in no other manner than by service of the notice required by that act (chapter 151, Laws 1890).- This view will be strengthened by a glance at the history of this legislation. This chapter, so far as applicable to this case., is borrowed from the statute of Iowa — section 894, Code Iowa 1873. Section 902 of the Iowa Code is as follows:
“No action for the recovery of real property sold for the nonpayment of taxes shall lie, unless the same be brought within five years after the treasurer’s deed is executed and recorded as above provided.”
In Slyfield v. Barnum, 71 Iowa, 244, 32 N. W. 270, these two sections came before the Supreme Court of that state for construction. The action was brought to set aside tax deeds that had been issued without the service of the notice required by section 894. The five-year period' had expired before the commencement of the action. In speaking of section 894 the court said:
“Under that and the following section the power of the treasurer in such cases to execute a deed is dependent on the giving of the notice. Unless the notice has been served on the person, in whose name the land is taxed, he is not authorized to ■execute a deed. The deeds in question, then', were executed without authority. They are not absolutely void, it is true, for they operated to transfer the title to the lands to the grantees. But they did not have the effect to terminate the right of redempion, and the title conveyed by them was subject to be defeated by the [137]*137exercise of that right (Bowers v. Hallock, 71 Iowa, 218, 32 N. W. 268, decided, at the present term) ; and as long as a right to redeem the lands existed there is no completed sale, and the settled rule is that until, there is a completed sale the period of limitation presented by the statute does not begin to run (Eldridge v. Kuehl, 27 Iowa, 160; Henderson v. Oliver, 278 Iowa, 20; McCready v. Sexton, 29 Iowa, 386, 4 Am. Rep. 214).”
The above decision was published in 1887. This was nearly three years prior to the adoption of chapter 151, Raws of 1890, so that, at the time of its adoption in this state, the Legislature knew the construction that had been put upon it in that state, and 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 as well. While we agree with the conclusion reached by that court, we do not subscribe to all the reasoning employed. A deed executed for property not taxable, or where the tax had been paid, or where the land is not situated in that taxing district, does not convey title; neither should a deed operate to transfer title if it is executed without the notice having been given.
The certificate of sale on which the tax deed in question is based was issued in November, 1890, and the rights of the parties affected thereby are governed by the law as it existed at the time. State ex rel. Waldo v. Fylpaa, 3 S. D. 586, 54 N. W. 599. The three-year statute of limitation in force at that time is found in section 1640, Comp. Laws, and had been in force since (or prior to) the revision of 1877 (section 75, c. 28, Pol. Code 1877). It reads as follows:
“No action shall be commenced by the former owner or owners of lands, or by any person claiming under him or them, to recover possession of land which has been sold and conveyed by deed for nonpayment of taxes, or to avoid such deed, .unless such action shall be commenced within three years after the recording of such deed, and not until all taxes, interest and penalties, costs and expenses shall foe paid or tendered by the parties commencing such action.”
It is urged on behalf of respondent that the Legislature has the power, when providing what notice shall be given, to also provide the effect of failure to give such notice, and that, there[138]*138fore, the Legislature has the power to say that no person can take advantage of a failure to give such notice unless -he moves within the time specified for that purpose. There is no doubt that the Legislature has this power. Neither is there any doubt that this power has been exercised. But it is to chapter 151, Laws of 1890, and not to section 1640, that we must look to find what the Legislature has declared shall be the effect of a failure to give this notice. It is true that section 1640 provides, in effect, that the validity of a tax deed shall not be assailed unless the action for that purpose be commenced within three years after the recording of the deed; but chapter 151 just as plainly says that a property owner’s right of redemption shall not expire until he has been served with notice. To. this extent these two provisions of law conflict, and when we apply the well-recognized rule of statutory construction, that when, two statutes conflict the' older of the two must give way to. the latter, there is no quesion that section 1640 must give way to. chapter 151. It is true that the provisions of section 1640 make no exception in cases where no notice of expiration of the right of redemption has been given. But up to 1890 no such notice was required, and therefore the question of notice was in no wise contemplated by the authors of the law. But in 1890 the law (chapter 151, Laws 1890) requiring notice to be given to the property owner before the tax deed could be executed was passed. The effect of this law was to bring about a very radical change in the procedure leading up to the execution of a tax deed. It not only required the giving of the notice, but, to make it plain that no landowner should thereafter be divested of title to his land without being given an opportunity to redeem, provided that his right of redemption should continue until the notice was given. The result of this was to except from the operation of section 1640, Comp. Laws, cases where a tax deed has been executed without the giving of notice, although more than three years may have elapsed between the execution of the deed and the commencement of the action; for the right to. bring an action to redeem could not be barred while the right of redemption still existed.
Again, if the contention of respondent is followed to its logical conclusion, it leads to this situation: A county treasurer could, at the expiration of two years after the delinquent tax sale, [139]*139proceed without any notice to or knowledge of the landowner to issue tax deeds for all the land that had not been redeemed; and if by mischance such owners are not apprised of the fact that ■such deeds had issued for three years, or for any reason, fail to commence an action to redeem within that time, they would be forever barred. Of course such a situation would not be tolerated for a minute by any one; yet it is in perfect harmony with respondent’s position.
The case of McKinnon v. Fuller, 33 S. D. 582, 146 N. W. 910, decided by this court -since the former opinion in this case was handed down, is cited in support of respondent’s position, and is referred to as a reaffirmance of Bandow v. Wolven, 20 S. D. 445, 107 N. W. 204. It is true that, in McKinnon v. Fuller, Bandow v. Wolven is referred to in approving terms; but it must be remembered that Bandow v. Wolven not only did not pass upon the question here involved, but, in 23 S. D. 124, 120 N. W. 881, expressly disavowed any intention of passing upon it. And, in the preparation of the opinion in, McKinnon v. Fuller, the second hearing in Bandow v. Wolven was entirely overlooked, just as it was overlooked in Cornelius v. Ferguson, Sobek v. Bidwell, and Gibson v. Smith. The question involved -in that case was whether or not the two-year limitation contained in the 'Scavenger Act of 1901 [Laws 1901, c. 51] would bar an action, commenced more 'than two years after. the sale, where the notice provided for in section 15 of that act had not been given. The conclusion reached by the court is in perfect harmony with the rule adopted -in the former opinion in this case. So far as the question involved in this case is concerned, section 18 of the Scavenger Act bears ’exactly the same relation to section 15 of that act that section 1640 -bears to chapter 151; yet, in McKinnon v. Fuller, the court unanimously agreed that section 18 of the Scavenger Act did not bar an action to- redeem from a Scavenger sale, brought more than two years after the -sale, where the notice had not been given, and to now adopt the rule contended for by respondent would 'be to absolutely overrule the decision in McKinnon v. Fuller.
The case of Nind v. Myers, 15 N. D. 400, 109 N. W. 335, 8 L. R. A. (N. S.) 157, and other cases from North Dakota, are cited by respondent as authority for his position in this case. But [140]*140these cases grew -out of a Scavenger tax law similar to our chapter 51, Taws of 1901, and are not in point.
It was contended by the respondent on the argument that, under the provision-of section 2213, Pol. Code, the giving of the notice cannot be questioned after the execution of the deed.. This section, so far as applicable to this case, is taken from section 1639, Comp. Taws, and reads as follows:
“Such deed shall be prima facie evidence of the regularity of all proceedings from the valuation of the land, by the assessor up to the execution of the deed.”
It is conceded, however, that this section does not apply to tax deeds that are void upon their face, and that it does not cure jurisdictional defects in the proceedings leading up to the. -execution of the deed. In this case the deed is fair upon its face; but, as we have already seen, the giving of the notice of the expiration of the period of redemption .is a jurisdictional act, and therefore one to which the statute does not apply.
Again, it will be noted that section 1639, Comp. Taws, makes the tax -deed only prima facie evidence of the regularity of all proceedings, etc., clearly implying that such evidence is subject to rebuttal, and may be overcome by evidence showing that all the statutory. requirements have not been complied with. This interpretation is adopted in Bandow v. Wolven, 23 S. D. 124, 120 N. W. 881. In that case, we said:
“By section 2213, Rev. Pol. Code, this tax deed- regular on its face was 'prima facie evidence of the truth of the facts therein stated, and the regularity of all- proceedings from the valuation of the land by the assessor up to the execution of the deed.’ Therefore such tax deed was prima facie evidence that a proper notice had been, given and had been properly served, and there was no burden on the claimant under such tax deed to make the showing referred -to in- such finding- 7; but the 'burden was on the person attacking such deed to introduce evidence to .show what notice, if any, was given, how same was given, and facts to show either a defective notice or defective service. There is nothing-in the findings to show but what the notice was in every way sufficient and. service complete.”
This, we believe, is a -correct interpretation of section 2213, and, so far as it applies to the notice of tax sale, we now- reaffirm the [141]*141same. But, in this case, it is conceded that the notice provided for in' chapter 151, Laws 1890, was not given. This overcame the prima facie effect of the deed, and section 2213 has no ap plication to this case.
It is claimed by respondent that property owners have been misled in regard to their property rights by what is said in Bandow v. Wolven, 20 S. D. 445, 107 N. W. 204, and the othei cases referred to by him. If such is the case, it is because they have failed to carefully examine what is said in those cases, and especially in Bandow v. Wolven, 23 S. D. 124, 120 N. W. 881. But, whatever may have been the effect of these cases on property rights that have been acquired since those decisions were published, they in no wise affected or misled respondent, because' whatever rights he may have were acquired and this action was commenced long before any of these decisions were rendered.
Respondent has no right to complain because of the situation in which he now finds himself. When he acquired his interest in the premises, the record in the tax proceedings that resulted in the issuance of the tax deed under which he claims title failed to show that the notice of expiration of the right of redemption had been given, though the law, which said that the right of redemption should not expire until the notice was given and proper proof thereof filed, was staring him in. the face. He was advised by these circumstances of the weakness of his title, and that h,e relied upon the statute of limitations for protection of his. interests rather than upon the soundness of his title is apparent from his subsequent conduct in bringing this action. But, from the fact that he waited until the expiration of ten, years after the recording of the tax deed and then immediately commenced his suit, it is apparent that it was the ten-year limitation found in sections 54 and 55, Code of Civ. Proe. (chapter 24, Laws 1891) and not the three-year limitation found in section 1640, 'Comp'. Laws, upon which he relied.
Having failed to bring himself within the provisions of the ten-year statute, and it appearing that the right of redemption by the former owners has never been extinguished, the judgment of the trial court is reversed, and our former opinion* is adhered to.