Anderson v. Roberts

• Decision Date: 26 November 1941
• Docket Number: 6781.
• Citation: 1 N.W.2d 338,71 N.D. 345
• Parties: ANDERSON v. ROBERTS et al.
• Court: North Dakota Supreme Court

1 N.W.2d 338

71 N.D. 345

ANDERSON v. ROBERTS et al.

No. 6781.

Supreme Court of North Dakota

November 26, 1941

Syllabus by the Court.

1. After a certificate of tax sale has been issued, the validity thereof may not be challenged with respect to any of the tax proceedings prior thereto unless those defects are such as may be urged under the provisions of Section 2193, Comp.Laws N.D.1913, or are beyond the power of the Legislature to remedy.

2. The description of land assessed in the name of the owner thereof and described as

NW 1/4 S. 14

T 139

R 79

A 160

is sufficient to support a tax levy and subsequent proceedings resulting in a tax sale.

3. Where land sold as one tract at tax sale is contained in a legal subdivision of 160 acres belonging to one owner and is occupied as a unit, such sale is valid as against the contention that the land should have been advertised and sold in smaller subdivisions.

4. Chapter 235, Session Laws N.D.1939, requires the publication of a notice of expiration of redemption and the service thereof by registered mail on the record title owner, the person in possession and mortgagees, lienholders and other person interested in the property as may appear from the records of the register of deeds and clerk of the district court of the county wherein the property involved is situated.

5. Under Chapter 235, Session Laws N.D.1939, a county does not acquire title to real property under tax deed proceedings until the prescribed notice of expiration of redemption has been published and served upon all parties entitled to redeem in the manner prescribed by the statute.

6. Until statutory notice of expiration of redemption has been published and served upon all parties entitled to receive such notice, and the prescribed period of redemption has expired, the right of redemption remains as to all.

7. Where two separate tax sales are held for taxes levied upon the same property for the same year, one being for general taxes and the other for hail taxes, and separate certificates are issued therefor as prescribed by law, there exist separate rights of redemption from each sale and a notice of redemption that fails to disclose the separate sales certificates and respective amounts for which the property was sold is an insufficient notice and is not effective to terminate rights of redemption.

Zuger & Zuger, of Bismarck, for appellant.

F. E. McCurdy, of Bismarck, for respondent.

MORRIS Judge.

The plaintiff brought this action to quiet title to a quarter section of land in Burleigh County which the plaintiff claims to have acquired from the county by virtue of a contract entered into with the county pursuant to the provisions of Chapter 288, Session Laws N.D.1931, as amended by Chapter 235, Session Laws N.D.1939. The county claimed title to the property by virtue of tax sale proceedings based upon taxes levied for the year 1931.

During all of the time involved in the proceedings up to the recording of a tax deed to Burleigh County, the defendant, Victor Moynier, was the record title owner to the lands in question. He contends that because of certain defects in the proceedings the tax deed is void and he is still the owner.

The trial court found that the tax deed was void and directed the cancellation of plaintiff's contract with the county upon reimbursement to the plaintiff by Victor Moynier of certain sums paid to the county. Chapter 235, Session Laws N.D.1939, makes a deposit covering such reimbursement a condition precedent to the right to proceed with the action. Such deposit was made.

The plaintiff appeals from the decision of the trial court and demands a trial de novo.

The trial court found that the township assessor failed to verify the assessment roll for 1931 and returned that record to the office of the County Auditor without verification. The Board of Township Trustees, sitting as a Board of Equalization, failed to sign or certify its minutes but made no change in the valuation fixed by the assessor. The Board of County Commissioners, sitting as a Board of Equalization, failed to make a record of its proceedings relative to the valuation of any land in the township in which the land involved is situated.

The school district in which the land is located made no budget for the year of 1931 but levied a lump sum. The land was sold at tax sale twice on December 13, 1932; one sale being for general taxes in the sum of $48.71, the other sale for hail indemnity taxes in the sum of $34.81. The land was bid in by Burleigh County at both sales and separate certificates issued therefor by the County Auditor under date December 13, 1932.

Notice of expiration of the period of redemption was caused to be published by the County Auditor of Burleigh County on July 30, 1940, pursuant to the provisions of Chapter 235, Session Laws N.D.1939. No mention is made in the publication of the separate sales, separate certificates or respective amounts for which the land was sold in 1931. However, the advertisement sets forth the amount due to be the sum of $142.40 which is apparently the sum of the amount due on both certificates with penalties and interest. A written notice of expiration of redemption containing a like description of the amount due and making no mention of the separate sales and separate certificates was, on May 8, 1940, mailed to Victor Moynier, Bismarck, North Dakota, and F. D. Fitts, Long Beach, California. It appears from a certificate of the register of deeds of Burleigh County that the former was the record title owner and the latter a mortgage holder. There is no evidence that any notice was ever mailed to or otherwise served on anyone purporting to be a person in possession. The quarter section of land was assessed as one description and treated as a whole throughout all of these proceedings. There was no personal service of the notice of expiration of redemption upon anyone. No redemption being made, the County Auditor issued to Burleigh County a tax deed dated October 1, 1940, and acknowledged by the County Auditor before a notary public on November 12, 1940. This deed was recorded in the office of register of deeds on December 4, 1940. The contract for deed between the plaintiff and the county is dated November 19, acknowledged by the chairman of the Board of County Commissioners on December 9 and by the plaintiff on December 12, all in the year 1940.

There is little dispute regarding the foregoing facts, however, the evidence is conflicting upon the question as to who was in possession of the land at the time the notice of expiration of redemption was served. On this point the trial court made the following findings of fact with which we agree: "After the Court had made a memorandum decision the parties stipulated that the case be reopened for taking further testimony relating to who was in possession. That evidence disclosed a loose arrangement between father and son. The son has been promised this land and has operated it and managed it for years but has never had the legal title conveyed to him. The soil conservation program has been carried on in the name of Victor Moynier, but the money received by the father through the program for that tract has been paid to the son. Neither party live on the land. The land has been idle under the program for the last two years. The son manages the farm belonging to his father and farms the same. The father (Defendant) does not actively farm. All farm work and management is by the son. The son testified that he knew nothing of this tax notice of expiration of redemption and that if he had known he was able and would have redeemed before sale."

There remains one further question of fact and upon that we differ with the trial court. The court found that the County Auditor increased the valuation without notice to Moynier. According to the record before us the Board of County Commissioners on July 24, 1931, resolved itself into the County Board of Equalization. This was done in accordance with the provisions of Section 2138, Comp.Laws N.D. 1913. The original minutes of that meeting are not before us. The parties stipulated regarding those minutes that "It appeared that there is no record in said minutes of any change in the valuations of real property in the township where the land in question is located from the valuation as left by the assessor. The record does not even show no change." It appears from the testimony of the present County Auditor that the defendant Moynier was a member of the Board of County Commissioners and was present and acted at the meeting of the County Board of Equalization. A motion was there unanimously passed "that the assessor's figures for townships and villages be accepted as corrected by the Board of Equalization." The County Auditor's record of "real property assessments for the year 1931" shows that the assessed valuation of the property therein involved was raised by the amount of $110. This record discloses that the value fixed by the town Board of Equalization was $1,360 while "total value as equalized by County Board" is entered as $1,470. Moynier contends that since the minutes of the County Board are silent as to any change the County Auditor must have arbitrarily raised the valuation without authority. We cannot agree with this contention. The County Auditor was secretary of the County Board of Equalization. Even though the minutes of the Board are silent the auditor's record of real property assessments shows the total value as equalized by the County Board to be $1,470. The record in this case is silent with reference to other lands in the township. All entries were made by a predecessor of the present County Auditor. He, therefore, was unable to explain the records. The...