Baeverstad v. Reynolds

• Citation: 18 N.W.2d 20,73 N.D. 603
• Decision Date: 24 February 1945
• Docket Number: No. 6954.,6954.
• Parties: BAEVERSTAD v. REYNOLDS et al.
• Court: United States State Supreme Court of North Dakota

73 N.D. 603

18 N.W.2d 20

BAEVERSTAD

v.REYNOLDS et al.

No. 6954.

Supreme Court of North Dakota.

Feb. 24, 1945.

Appeal from District Court, Towner County; G. Grimson, Judge.

Action by H. B. Baeverstad against Frederic P. Reynolds, as trustee of the last will of Charles Grandison Reynolds, deceased, and V. C. O'Reilly to quiet title to land purchased by plaintiff from a county which asserted title under a tax deed. From a judgment for defendant, plaintiff appeals.

Judgment modified, and as modified, affirmed.

Syllabus by the Court.

1. The statute, section 57-4510 of the Revised Code of 1943, being Chapter 286 of the Session Laws of 1941, which provides that in a case where one claims title to real property by virtue of a tax deed from the county, and such tax deed is assailed, ‘the Court shall not proceed with the trial of such action until the party assailing the validity of such deed, shall * * * deposit with the Clerk thereof, for the benefit of the party claiming title under such deed, an amount equal to the sum paid by such party * * * for the purchase of the property covered by such deed * * *,’ is a statute for the benefit of the one claiming title under the tax deed and may be waived by him.

2. Where the claimant under such tax deed moves the court to require the assailant to make such deposit and the court orders a deposit in an amount less than the amount the claimant paid to the county, and the holder under the tax deed takes no exception to the amount that has been fixed by the court, either at the time the order is made or upon the trial of the case, he is deemed to have waived further right under that statute.

3. The county auditor, in issuing a notice of the expiration of the time of redemption from a tax sale of real estate sold to and held by the county, may include therein subsequent delinquent taxes, provided certificates of sale were or are deemed to have been issued for at least three years prior to the service of the said notice of expiration of the time of redemption.

4. One entitled to redeem from a tax sale has the right to redeem upon the payment of the taxes for which the land was sold together with subsequent delin quent taxes on which certificates had been issued at least three years prior to the service of the notice, together with penalty, interest, and costs.

5. As a pre-requisite to such redemption, one entitled to redeem from a tax sale is not required to pay subsequent delinquent taxes which have not been delinquent at least three years prior to the service of the notice.

6. When the county auditor, in issuing such notice of expiration of the time of redemption from the tax sale, and specifying the amount to be paid in order to effect a redemption, includes in the statement of said taxes subsequent delinquent taxes, some of which have been delinquent less than three years prior to the service of the notice, and sets forth the sum of all these delinquent taxes in one amount without specifying the year of each delinquency so that one entitled to redeem can not tell from the notice the amount of taxes which have been delinquent for three or more years prior to the service of the notice, such notice is invalid and a tax deed issued thereon is void.

7. In the case at bar the plaintiff purchased from the county land obtained by the county by means of a tax deed, and the defendant, claiming to be the owner of the land, assailed this tax deed issued to the county under which the plaintiff claimed title, and the court, under the provisions of sec. 21, Chap. 286 of the S. L. of 1941, required the defendant to make a deposit with the court of $521.55 for the benefit of the plaintiff and as reimbursement for the amount he had paid the county for the land; otherwise the trial would not proceed. It is held: That though the plaintiff failed to establish his title to the land involved, because of the invalidity of the tax deed issued to the county, nevertheless he was entitled to the amount deposited by the assailant of the deed as reimbursement for the amount plaintiff had paid to the county for the lands and the judgment should require the clerk to deliver this deposit to the plaintiff.

CHRISTIANSON and BURKE, JJ., dissenting in part.Lloyd B. Stevens, of Cando, for plaintiff and appellant.

Sinness & Duffy, of Devils Lake, for defendants and respondents.

BURR, Judge.

Prior to 1931, C. J. Lord was the owner of the W 1/2 of the NE 1/4 of Section 28, Twp. 158, range 66 in Towner County. The taxes levied for 1931 became delinquent and the land was sold to the county in December, 1932, and a tax sale certificate issued.

On or about September 1, 1932, the owner mortgaged the land to the Security-First National Bank of Los Angeles as trustees under the last will and testament of Charles Grandison Reynolds, and the mortgage was recorded October 5, 1932.

It is stipulated that subsequent taxes were levied against this property as follows:

+-------------+
                ¦1931-¦$49.20 ¦
                +-----+-------¦
                ¦1932-¦42.72  ¦
                +-----+-------¦
                ¦1933-¦33.78  ¦
                +-----+-------¦
                ¦1934-¦37.04  ¦
                +-----+-------¦
                ¦1935-¦$38.68 ¦
                +-----+-------¦
                ¦1936-¦28.26  ¦
                +-----+-------¦
                ¦1937-¦34.30  ¦
                +-----+-------¦
                ¦1938-¦32.66  ¦
                +-------------+
                

and that the county auditor ‘in preparing the notice of expiration of the period of redemption * * * added to the face of those taxes the interest and penalty accrued to the time of the notice with the result that the taxes as therein computed were as follows: 1931 $83.79; 1932 $58.13; 1933 $43.87; 1934 $45.80; 1935 $45.43; 1936 $31.44; 1937 $35.85, making a total of $344.31.’ There is some confusion in the stipulation as to the taxes levied in 1938, so we do not consider them.

On January 10, 1939, the county auditor issued a notice of expiration of the time of redemption from tax sale, the notice stating: ‘There is given herewith the descriptions of such parcels of real estate, and set opposite each description is the amount which will be required upon the date of the expiration of the period of redemption to redeem such real estate from such tax sale exclusive of the cost of serving this notice personally upon the owner and the person in possession thereof.’

This was served personally upon the plaintiff in this case as the occupant of the land in question, and on Vine Lord, the administrator of the estate of C. J. Lord. A notice similar in character was published in January, 1939, and set forth a description of the land involved here, the name of the title owner, and the amount required to redeem, as follows:

+-------------------------------------------------------------+
                ¦Cando Township                                               ¦
                +-------------------------------------------------------------¦
                ¦Township 158-Range 66                                        ¦
                +-------------------------------------------------------------¦
                ¦Title Owner             ¦Sec. or Block¦Amount reqd. to Redeem¦
                +------------------------+-------------+----------------------¦
                ¦C. J. Lord, W 1/2 NE 1/4¦28           ¦344.31                ¦
                +-------------------------------------------------------------+
                

This notice varied in many respects from the notice served upon the administrator and then on the occupant of the land and also added thereto the statement that the amount set opposite the description of the tract sold, as the amount that would be required to redeem from the tax sale, included ‘the amount for which the said land was sold, interest and penalty thereon, subsequent delinquent taxes prior to those of the year 1938, and the penalties and interest thereon.’

It is stipulated as follows: ‘That exhibit 3 is a certified copy of the original notice of the expiration of the period of redemption in connection with the tax deed proceedings upon which the tax deed exhibit 2 was issued and that this is the only notice served in connection with the tax deed proceedings; that service was made as shown on the back of the certified copy exhibit 3, and in addition thereto service was made by registered mail on the defendant Frederic P. Reynolds and upon the Security First National Bank of Los Angeles, who is the original trustee in the mortgage upon which Mr. Reynolds obtained a sheriff's deed, which will later be offered in evidence; and exhibits 3A and 3B are receipts signed by the Bank of Mr. Reynolds for copies of the Notice of Expiration of the period of redemption, and the service as made as shown on the exhibits plus service by registered mail as stipulated constitutes the entire service that was made, and that in addition thereto the notice of expiration of the period of redemption was published in the Cando Herald on January 26-1939 as shown by exhibit 4 now offered.’

The mortgage was foreclosed February 7, 1940, and certificate of sale issued to the defendant.

The county presented its tax sale certificate to the auditor, demanding a deed, and on October 1, 1940, the auditor issued a tax deed reciting that the deed was made by him as county auditor to Towner County, a municipal corporation; that the land had been sold to the county at tax sale for the sum of $52.55 and a tax sale certificate was issued to the county, that the time fixed by law for redeeming from the tax sale had expired, that no redemption had been made, and that the taxes with interest and penalty and cost now amounted to $346.62.

December 5, 1940, the county sold this land to the plaintiff herein, giving a deed which recited that it was made ‘between the County of Towner, North Dakota, party of the first part, acting by and through the Chairman of its Board of County Commissioners and its County Auditor, and H. B. Baeverstad, Cando, N.D., party of the second part.’ It recited that the property had been offered for sale November 19, 1940, ‘and no bid was received for same and said second party became the purchaser of the whole thereof for the sum of Six Hundred and no/100 Dollars.’ It is stipulated plaintiff ‘is in possession of the...