Baird v. Zahl

• Decision Date: 12 August 1929
• Docket Number: No. 5676.,5676.
• Citation: 226 N.W. 549,58 N.D. 388
• Parties: BAIRD v. ZAHL.
• Court: North Dakota Supreme Court

58 N.D. 388

226 N.W. 549

BAIRD

v.ZAHL.

No. 5676.

Supreme Court of North Dakota.

Aug. 12, 1929.

Syllabus by the Court.

Under section 2193, Comp. Laws 1913, which provides that a certificate of tax sale “shall in all cases be prima facie evidence that all requirements of law with respect to the sale have been duly complied with, and that the grantee named therein is entitled to a deed therefor after the time of redemption has expired,” a tax certificate is prima facie evidence that the tax purchaser paid the purchase price, and such prima facie evidence is not overthrown by a receipt of the county treasurer for the purchase moneys dated some days subsequent to the time of the sale.

The statute which makes provision for notice of expiration of time for redemption before a tax deed can issue is for the protection of the parties having the right to redeem, and no valid deed can issue unless such statute has been complied with; any deviation from the notice prescribed by the statute either in contents or mode of service which has any tendency to mislead or prejudice the rights of anyone having a right of redemption renders the notice ineffective and invalidates the tax deed thereon.

Where the notice of expiration of time for redemption conforms, in substance, to that prescribed by the statute, and affords to the parties to whom it is addressed and upon whom it is served in substance all the information required by the statute, the notice is not rendered invalid because of some trifling error or inaccuracy which could not possibly have misled or prejudiced any one.

In the instant case the notice of expiration of time for redemption was served by publication. The notice was dated September 25, 1924. In the published notice, the date was stated to be October 3, 1924. Through an error in computation, made by the county auditor, the notice stated that the amount required to redeem was $90.11, whereas the amount actually required was $89.34. For reasons stated in the opinion, it is held that these errors did not affect the substance of the notice, and did not render the notice ineffectual or invalidate the tax deed issued pursuant thereto.

Appeal from District Court, Williams County; Moellring, Judge.

Action by L. R. Baird, as receiver of the Farmers' Bank of Ray, against Mary E. Zahl. Judgment for defendant, and plaintiff appeals. Affirmed.

Ivan V. Metzger, of Williston, for appellant.

Wm. G. Owens, of Williston, for respondent.

CHRISTIANSON, J.

Plaintiff brought this action to annul a tax deed issued to the defendant by the county auditor of Williams county on April 28, 1925. The deed was based upon the tax sale held in December, 1920. The trial court made findings and conclusions, and ordered judgment in favor of the defendant; that is, the trial court found that the tax deed in question was valid and vested in the defendant a title in fee simple to the premises described in the deed. Plaintiff has appealed from the judgment, and demands a trial anew in this court.

Plaintiff claims that the tax deed is invalid for the following reasons:

(1) That the purchaser at the tax sale did not pay the purchase price in cash, but was given credit and paid the purchase price twenty-one days after the tax sale was held.

(2) That the notice of expiration of time for redemption was irregular and defective in the following particulars:

(a) That the notice published in the newspaper varies from that issued by the county auditor in this, that the notice as published bears date October 3, 1924, while the notice issued by the county auditor bears date September 25, 1924.

(b) That the notice stated the amount required to redeem the lands from the tax sale to be $90.11, whereas the amount actually required was only $89.34.

These contentions will be considered in the order stated.

[1] 1. As regards the first contention advanced by the appellant that the purchaser at the tax sale was given credit and paid the purchase price twenty-one days after the sale was made, it is sufficient to say that the record presented does not establish the facts to be as claimed by the appellant. There was offered and received in evidence a certificate of sale for taxes, issued by the county auditor of Williams county on December 14, 1920. The certificate is in the form prescribed by the statute, and is in all respects regular on its face. The certificate shows that the premises in question were sold by the county auditor of Williams county to the defendant at the time and in the manner provided by law. The certificate recites that the premises therein described were, on the 14th day of December, 1920, sold by the said county auditor “in manner provided by law, for the delinquent taxes of the year 1919 thereon, amounting to Fifty-nine and 30/100 Dollars, including interest and penalty thereon, and the costs allowed by law, to M. E. Zahl for the sum of Fifty-nine and 30/100 Dollars. He being the bidder who agreed to accept the lowest rate of interest thereon from the date of sale on the amount of such taxes, penalties and costs so paid by him. * * *”

According to section 2193, Comp. Laws 1913, this certificate is “prima facie evidence that all requirements of law with respect to the sale have been duly complied with, and that the grantee named therein is entitled to a deed therefor after the time of redemption has expired; and no sale shall be set aside or held invalid, unless the party objecting to the same shall prove either that the property upon which the tax was levied was not subject to taxation, or that the taxes were paid prior to such sale, or that notice of such sale as required by law was not given; or that the piece or parcel of land was not offered at said sale to the bidder who would pay the amount for which the piece or parcel was to be sold, in which cases, but in no other, the court may set aside the sale or reduce the amount of taxes upon such land, rendering judgment accordingly.” The county auditor is required to keep a record of tax sales. Section 2195, Comp. Laws 1913. There is no claim that such records were not kept, and that they do not in all respects conform to the recitals of the certificate of tax sale. The sole basis for appellant's contention that the tax purchaser was given credit, and did not pay the purchase price, until January 4, 1921 is that the receipt issued by the county treasurer bears this date. It is upon this fact and this alone that the appellant's contention is predicated. Appellant rests his case solely upon the receipt. We are not convinced that the fact that the receipt issued by the treasurer bears date January 4, 1921, is evidence that payment was not made by the tax purchaser on December 14, 1920. It is a matter of common knowledge that in the year 1920 there were large numbers of tracts of land sold for taxes, that frequently it required a considerable time after the sale had been held before the officers charged with the duty to do so could prepare the proper documents, and that at times the various county treasurers were unable, because of press of business, to issue the receipts until some time after payments had been made. But, if it be assumed as appellant contends it must be, that the receipt is in conflict with and contrary to the recitals of the tax sale certificate,...