Beggs v. Paine

• Decision Date: 16 October 1906
• Parties: BEGGS v. PAINE.
• Court: North Dakota Supreme Court

15 N.D. 436

109 N.W. 322

BEGGS

v.PAINE.

Supreme Court of North Dakota.

May 15, 1906.

Rehearing Denied Oct. 16, 1906.

Syllabus by the Court.

A tax deed issued pursuant to a tax sale under chapter 132, p. 376, Laws 1890, is void if it fails to state any one or more of the facts which a deed in the form prescribed by section 7, c. 100, p. 271, Laws 1891, should show.

A tax deed which does not substantially comply with the form prescribed by law for such a deed is not prima facie evidence of a valid tax sale, and does not set in motion those statutes of limitation which bar actions to set aside tax sales without adverse possession.

A purchaser at a valid tax sale pursuant to chapter 132, p. 376, Laws 1890, acquired actual ownership of the land sold as soon as the right of redemption had been terminated, even though a deed in proper form had not been delivered to him. (Young, J., dissenting.)

Where the record on appeal under section 5630, Rev. Codes 1899, shows that a tax deed was by both parties and the trial court assumed to be sufficient in form and accordingly prima facie evidence of title, and attention is not called to the formal insufficiency of the deed until the argument on appeal, this court will grant a new trial to afford the party claiming under the deed an opportunity to establish his right by other evidence. (Young, J., dissenting.)

Where a certificate holder has in proper time obtained a tax deed which is good on its face according to common-law rules, but does not conform to the statutory form, and is therefore void on its face, the certificate is not barred by chapter 165, p. 220, Laws 1901.

The abbreviation “N. W.” in the column headed “Part of Section,” was sufficient to identify the land as the northwest quarter of the section named in the assessment roll. Power v. Bowdle, 54 N. W. 404, 3 N. D. 107, 21 L. R. A. 328, 44 Am. St. Rep. 511, and Power v. Larabee, 49 N. W. 724, 2 N. D. 141, distinguished.

A tax sale made in 1896 under the revenue law contained in the Revised Codes of 1895, was void if based on an assessment roll which was not verified by the required assessor's affidavit; but that defect did not invalidate the taxes for which the sale was made so as to warrant a cancellation of such taxes in the absence of any claim that same were unjust.

The assessment roll was produced, and there was no assessor's affidavit attached to it, and there was no indication that any had ever been attached. The auditor testified that there was nothing to indicate that such affidavit had ever been in his office. Held, sufficient prima facie proof that the assessor had neglected to attach his affidavit to the assessment roll.

The right of a tax sale purchaser at a sale in 1896 to a lien for taxes paid, guarantied to him by section 1273, Rev. Codes 1895, was a right which could not be impaired by subsequent legislation. (Young, J., dissenting.)

A percentage levy of road taxes by township authorities, based on the assessment roll of the previous year, was a valid levy.

A certificate of sale issued on a tax sale in 1897, which shows that one acre was sold out of a quarter section, but does not identify the particular acre referred to, is void.

A tax sale certificate for a sale under the present revenue law need not be executed under seal. The omission of a seal is not a substantial departure from the statutory form, because the county auditor has no official seal.

Section 1263, Rev. Codes 1899, construed and held, under the provisions of this section, the failure of a person affected by the tax sale to seek relief from irregular tax proceedings before the tax sale operates as a complete bar to any relief unless the defect complained of is one or more of the objections specified in the section, or is some jurisdictional defect which it is beyond the power of the Legislature to remedy by a curative act or bar by a limitation statute not requiring adverse possession. (Young, J., dissenting.)

In the notice of delinquent tax sale, which was otherwise sufficient, the words “Amount of Sale” appeared over the column in which were stated the sums for which each tract was to be sold. The notice clearly showed what was intended, and the words were not misleading. Held, the notice was good.

Appeal from District Court, Dickey County; W. S. Lauder, Judge.

Action by A. L. Beggs against J. A. Paine. Judgment for plaintiff, and defendant appeals. Reversed and remanded.Newman, Spalding & Stambaugh, for appellant. C. W. Davis and W. F. Mason, for respondent.

ENGERUD, J.

This is an action in statutory form to quiet title to a quarter section of land in Dickey county, of which land the plaintiff claims to be the owner in fee. The defendant, in his answer, claims to have acquired title to the land by virtue of certain tax deeds; and also sets up certain tax sale certificates held by him thereon, upon which deeds have not yet been issued. The trial court found that each of the various tax sales upon which the defendant relied were invalid, and judgment was accordingly entered quieting the title of the land in plaintiff. The defendant has appealed to this court and demands a new trial of the entire case on a statement of the case duly settled for that purpose.

Each of the six tax sales upon which defendant relies is alleged as a separate defense, numbered in chronological order.

The first defense is a sale in 1890, for the taxes of 1889, upon which a tax deed was issued in 1894. The second is a sale in 1891, for the taxes of 1890 upon which a deed was received in 1895. The third alleges a sale in 1896, for the taxes of 1895, and a deed issued thereon in 1901. The fourth, fifth, and sixth defenses are based, respectively, on sales in 1899, 1900, and 1901; each being for the tax of the preceding year, on none of which sales any deed has been issued. The appellant has abandoned all claims under the deed of 1895, for the taxes of 1890, because it is conceded that the assessment was void for want of any sufficient description of the property. The tax deed issued in 1894 on the sale of 1890 is void on its face because it does not conform in substance to the form prescribed by the statute for such a deed. It varies from the statutory form in several particulars, some of which are not material and need not be mentioned. The sale was made under the revenue law of 1890 (chapter 132, p. 376, Laws 1890). The form of deed is prescribed by section 7, c. 100, p. 271, Laws 1891, which was enacted to supply the omission in that respect in the law of 1890. That law required that the tax deed should “substantially” conform to the form therein prescribed. One of the recitals in the statutory form is a statement of the amount for which the premises were sold. This deed fails to state the amount for which the land was sold, and there is nothing on the face of the deed from which that amount can be ascertained. It is well-settled law that where the statute prescribes the form of a tax deed, even though it requires only a substantial conformity thereto, a deed which omits to show any one or more of the facts which the statutory form should disclose, is void. This is so, because the statute, by prescribing the form, has thereby made every fact recited in the form a matter of substance. It is only those deeds which conform in substance to the statutory form that are made evidence of anything; and it is only such a deed that can set in motion those statutes of limitation which bar actions to set aside tax sales without adverse possession. Blackwell on Tax Titles, § 773; Simmons v. McCarthy, 118 Cal. 622, 50 Pac. 961;Gilfillan v. Hobart, 35 Minn. 185, 28 N. W. 222;Vanderlinde v. Canfield, 40 Minn. 541, 42 N. W. 538;Lain v. Shepardson, 18 Wis. 59;Salmer v. Lathrop, 10 S. D. 216, 72 N. W. 570;Hegar v. De Groat, 3 N. D. 354, 56 N. W. 150. This deed was the only evidence offered by the defendant in support of his alleged title under the sale of 1890. The deed being void on its face, proves nothing except its own execution. When the deed was offered in evidence, plaintiff's counsel objected to its admission on the ground that it was not in proper form. In answer to the trial court's request to specify the alleged defect in form, counsel stated that he was not certain that there was any defect, and that he would not put in any specific objection, as he was not then prepared to do so. It is needless to say that such an objection is of no avail. It is apparent that counsel did not notice the defect in form. We cannot believe that he was guilty of bad faith in the matter.

This objection to the deed seems to have been urged for the first time in this court. If it went merely to the technical sufficiency of the proof, we would hold that the objection was waived. It is not, however, a case where merely incompetent evidence has been admitted without objection to prove a given fact, but is rather a case where there is no evidence to prove the fact alleged. It is clear from the record, however, that counsel for both parties as well as the trial court, did not notice the defect in form, but assumed that the deed was sufficient in form to have the evidentiary force given to it by the statute; and the burden of proof was thereby cast upon the plaintiff to establish some irregularity in the proceedings sufficient to invalidate the same. It is fair to presume that if the point now raised with respect to the insufficiency of this deed had been raised at the trial, other evidence than the deed would have been offered in support of defendant's case. We think the record presents a case where, by reason of mutual misapprehension and mistake at the trial, the accomplishment of justice demands a new trial of the issues raised by that part of the answer which pleads title under this sale of 1890. Paine v. Doods, 14 N. D. ---, 103 N. W. 931.

This presents the question as to whether or not, in case the defendant shall be able to prove on the new trial a valid tax...