Baird v. Stubbins

Decision Date26 July 1929
Docket NumberNo. 5679.,5679.
Citation226 N.W. 529,58 N.D. 351
PartiesBAIRD v. STUBBINS.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

By the laws of North Dakota, taxes upon real estate are “made a perpetual, paramount lien thereupon against all persons and bodies corporate, except the United States and the state (section 2186, C. L. 1913); upon sale of the land for nonpayment of taxes, the lien passes to the purchaser, but the title, subject to the lien, remains in the former owner until the time for redemption has expired, and the holder of the certificate of sale for taxes becomes entitled to receive a tax deed.

By “subsequent purchaser,” in section 5594, C. L. 1913 (which provides that every conveyance by deed, mortgage, or otherwise, of real estate within this state, which is not recorded in the office of the register of deeds of the countywhere such real estate is situated, shall be void as against any subsequent purchaser in good faith and for a valuable consideration), is meant a subsequent purchaser from the same grantor.

There is no privity between the record owner of real estate and the grantee in a tax deed; the tax title is not derived from, but in antagonism to, the former.

A valid tax deed clothes the grantee with a new and complete title in the land, under an independent grant from the sovereign authority, which bars and extinguishes all prior titles and incumbrances of private persons whether of record or otherwise.

In the instant case, it is held that the title of the holder of an unrecorded tax deed was not cut off by a sale under an execution issued upon a judgment docketed against the record owner of the land.

Additional Syllabus by Editorial Staff.

Comp. Laws 1913, § 2205, providing that tax deed may be recorded as other deeds of realty, and that record thereof shall have same force and effect in all respects as record of such other deeds, and may be evidenced in like manner, is permissive merely, and does not require tax deed to be recorded to be valid.

Appeal from District Court, McHenry County; Grimson, Judge.

Action by L. R. Baird, as receiver of the Granville State Bank, Granville, N. D., against Edith A. Stubbins. From an adverse judgment, defendant appeals. Reversed and remanded, with directions.

Bagley & Johnson, of Towner, for appellant.

Dickinson & Johnson, of Minot, for respondent.

CHRISTIANSON, J.

The sole question involved in this case is whether the title of the defendant under certain unrecorded tax deeds was cut off by a sheriff's deed issued to the plaintiff pursuant to a sale upon an execution against the record owner of the land. The material facts are not in dispute. They are as follows: On March 20, 1926, the plaintiff obtained a judgment against the Stubbins Land & Loan Company. Thereafter execution was issued upon the judgment, and on November 13, 1926, certain lands in McHenry county, the title to which then appeared of record in the name of said Stubbins Land & Loan Company, were sold to the plaintiff at execution sale, and sheriff's certificate of sale was duly issued to him. There was no redemption, and on April 6, 1928, a sheriff's deed was issued to the plaintiff.

The taxes assessed against these lands for the year 1920 became delinquent, and the lands were duly advertised and sold to the defendant at the tax sale held in December, 1921, and certificates of sale for taxes were duly and regularly issued to her. In due time she presented her certificates to the county auditor, and notices of expiration of time for redemption were issued and served and on September 18, 1926, tax deeds were issued. These tax deeds were not recorded. Upon the trial, the parties stipulated as facts that the taxes for which the sales were held had been duly and regularly levied; that notice of expiration of time for redemption had been given as required by law; that all proceedings leading up to the issuance of said tax deeds were on file and of record in the office of the county auditor of McHenry county; that such proceedings were in all respects regular and in accordance with law; that at the time of the issuance of the sheriff's deed the title to the lands involved in this controversy appeared of record in the name of the Stubbins Land & Loan Company; that the plaintiff was not informed and did not have knowledge at any time prior to the levy on the land under the execution that the defendant had or claimed any interest in the lands in question; that on February 8, 1927, and September 7, 1926, “the plaintiff made inquiries and examinations of the records as to the legal title to the aforesaid land and made inquiry from the auditor of McHenry county as to delinquent taxes due thereon”; and that the said county auditor informed the plaintiff that there were delinquent taxes for the years 1923 and 1924 in certain stated amounts.

The plaintiff specifically disclaims any intention of questioning the legality of the tax deeds held by the defendant, but contends that, inasmuch as defendant failed to record such deeds, they became and were void as against the plaintiff under section 5594, C. L. 1913, and that consequently the sheriff's deed issued to him cuts off all interest and title of the defendant and vests in the plaintiff a title in fee. The trial court sustained this contention, and defendant has appealed.

Plaintiff's claim of title is predicated solely upon the Recording Act (sections 5594-5598, C. L. 1913), which provides:

Sec. 5594. Every conveyance by deed, mortgage or otherwise, of real estate within this state, shall be recorded in the office of the register of deeds of the county where such real estate is situated, and every such conveyance not so recorded shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any part or portion thereof, whose conveyance, whether in the form of a warranty deed or deed of bargain and sale, deed of quitclaim and release, of the form in common use or otherwise, is first duly recorded; or as against any attachment levied thereon or any judgment lawfully obtained, at the suit of any party, against the person in whose name the title to such land appears of record, prior to the recording of such conveyance. * * *”

Sec. 5595. The term ‘conveyance,’ as used in the last section, embraces every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged or incumbered, or by which the title to any real property may be affected, except wills and powers of attorney. The word ‘purchaser’ as used shall embrace every person to whom any estate or interest in real estate is conveyed for a valuable consideration, and also every assignee of a mortgage, lease or other conditional estate.”

In our opinion, section 5594, supra, does not have the effect of rendering an unrecorded tax deed void as against subsequent conveyances by, or attachments or judgments against, the person in whose name the title to the land described in such deed appears of record. In other words, we are of the opinion that the validity of a tax deed is not affected by the provisions of the Recording Act.

[1] By the laws of this state (section 2186, C. L. 1913), “taxes upon real property are * * * made a perpetual paramount lien thereupon, against all persons and bodies corporate, except the United States and the state.” Upon sale of the land for nonpayment of taxes, the certificate of sale constitutes a contract between the state and the purchaser (Fisher v. Betts, 12 N. D. 197, 96 N. W. 132), and vests in the purchaser a lien on the premises (Cruser and Baker v. Williams, 13 N. D. 284, 100 N. W. 721). The title to the land, however, remains in the former owner, subject to the lien for the taxes, until the time for redemption has expired. Cruser and Baker v. Williams, supra. “At the expiration of the time for redemption of lands sold for delinquent taxes, and after the filing of the proof of notice of expiration of period of redemption * * * and on production of the certificate of purchase,” it becomes the duty of “the county auditor of the county in which the sale of such lands took place [to] execute to the purchaser, his heirs or assigns, in the name of the state, a deed of the land remaining unredeemed;” which deed vests “in the said purchaser, his heirs or assigns, an absolute estate in fee simple in such land, subject, however, to all the claims which the state may have thereon for taxes, or other liens or incumbrances.” Section 2206, C. L. 1913. The taxes or liens for which the state is given priority over a tax deed are only “those coming into existence subsequent to the tax upon which the deed is issued.” Emmons County v. Bennett, 9 N. D. 131, 133, 81 N. W. 22, 23.

“The policy of the registry law is that the title and all that affects it should be disclosed by the public records, and upon the theory that it is thus...

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20 cases
  • Ulrich v. Amerada Petroleum Corp.
    • United States
    • North Dakota Supreme Court
    • October 2, 1954
    ...operation of law'. This court has repeatedly held that a valid tax deed grants a complete title to the land. In Baird v. Stubbins, 58 N.D. 351, 226 N.W. 529, 530, 65 A.L.R. 1009, it is 'A valid tax deed clothes the grantee with a new and complete title in the land, under an independent gran......
  • Conlin v. Metzger, 7217
    • United States
    • North Dakota Supreme Court
    • November 9, 1950
    ...plaintiff gave him a new and complete title in the land under an independent grant from the sovereign authority. Baird v. Stubbins, 58 N.D. 351, 226 N.W. 529, 65 A.L.R. 1009; Peterson v. Reishus, 66 N.D. 436, 266 N.W. 417, 105 A.L.R. 724; Nelson v. Murton, 68 N.D. 108, 277 N.W. The decision......
  • Siana Oil & Gas Co. v. Dublin Co.
    • United States
    • North Dakota Supreme Court
    • July 11, 2018
    ...has nothing to do with the prior chain of title. Nelson v. Kloster , 68 N.D. 108, 277 N.W. 390 [ (1938) ] ; Baird v. Stubbins , 58 N.D. 351, 226 N.W. 529, 65 A.L.R. 1009 [ (1929) ] ; Peterson v. Reishus , 66 N.D. 436, 266 N.W. 417, 105 A.L.R. 724 [ (1936) ]. Such a deed, by the provisions o......
  • Pederson v. Federal Land Bank of St. Paul
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    • North Dakota Supreme Court
    • September 24, 1955
    ...sovereign authority which extinguished all prior titles. Ulrich v. Amerada Petroleum Corp., N.D., 66 N.W.2d 397; Baird v. Stubbins, 58 N.D. 351, 226 N.W. 529, 65 A.L.R. 1009; State v. Griggs County, 72 N.D. 587, 10 N.W.2d 245; Peterson v. Reishus, 66 N.D. 436, 266 N.W. 417, 105 A.L.R. 724; ......
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