Beggs v. Paine

• Decision Date: 15 May 1906
• Citation: 109 N.W. 322,15 N.D. 436
• Parties: A. L. BEGGS v. J. A. PAINE
• Court: North Dakota Supreme Court

109 N.W. 322

15 N.D. 436

A. L. BEGGS
v.
J. A. PAINE

Supreme Court of North Dakota

May 15, 1906

Rehearing denied October 16, 1906.

Appeal from District Court, Dickey county; Lauder, J.

Action by A. L. Beggs against J. A. Paine. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Reversed and remanded. Appellant recovered the taxable costs and disbursements of this appeal.

Newman, Spalding & Stambaugh, for appellant.

C. W. Davis and W. F. Mason, for respondent.

ENGERUD, J. MORGAN, C. J., concurs. YOUNG, J. (dissenting in part).

OPINION [109 N.W. 323]

[15 N.D. 438] 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.

[15 N.D. 439] 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, section 773; Simmons v. McCarthy, 118 Cal. 622, 50 P. 761; 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 [15 N.D. 440] 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 [109 N.W. 324] 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. Dodds, 14 N.D. 189, 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 sale, and that the time for redemption has been terminated, he can thereby establish his title to the property, even though he has no valid deed. It is necessary to decide this question, because, if the invalidity of the deed precludes inquiry into the validity of the antecedent proceedings, there is no need for a new trial. We think the question should be answered in the affirmative. Under the statute by virtue of which the sale in question was made, the purchaser [15 N.D. 441] at the sale was entitled to receive a deed conveying to him the title in fee of the premises sold after the expiration of three years and the termination of the redemption right by the service of a notice of the time when the right to redeem would expire. Section 103, c. 132, p. 414, Laws 1890. Unlike the revenue laws of 1896 (section 1264, Rev. Codes 1895), and the territorial revenue law (section 1635, Comp. Laws 1887) under which the right to redeem did not expire until the deed was actually issued, the law of 1890 provided that the right to redeem was terminated absolutely after the expiration of sixty days from the date of the service of the notice of the expiration of redemption, provided at least three years had expired from the day of sale. On and after the sixty-first day from the date of the completion of the service of the redemption notice, provided three years had expired since the sale, the former owner's rights were gone forever, whether the deed had yet been issued or not. The right to the possession and to the rents and profits passed to the purchaser at the expiration of three years from the sale, even though no deed had been issued, and even though the redemption right had not been terminated. Section 83, c. 132, p. 407, Laws 1890.

Assuming, then, that the proceedings were all regular and that more than sixty days had elapsed since the service of the notice of expiration of redemption, but no deed had issued, we would have a case presented where the former owner, although nominally holding the naked record title had lost all his proprietary rights, including the right to redeem, and the tax sale purchaser had become vested with all the rights of an owner and entitled to a deed transferring the record title. Unless we are to regard form as superior to substance, it is manifest that the purchaser must be held to be the owner. The conditions are analogous to those existing in the case of Smith v. Security Loan & Trust Co., 8 N.D. 451, 79 N.W. 981, where this court held that one who merely holds the nominal title without any proprietary rights has no real title or right. It is clear that it can make no difference in the application of the principle whether the conditions under which that doctrine applies are brought about by contract or by operation of law. It is true that the statute, in speaking of the deed, says that such deed shall vest the title in the grantee. Chapter 110, p. 283, Laws 1891. This must be taken to refer to the nominal or apparent record title, because it is clear, from the reading of the law as a whole, [15 N.D. 442] that the actual substantial title or rights of ownership pass to the purchaser by operation of law as soon as the former owner's rights are terminated. The termination of those rights must necessarily, under the terms of the law, precede the execution and delivery of the deed. There must necessarily be a greater or less interval of time elapsing between the termination of the former owner's rights and the delivery of the deed. It is inconceivable that the actual ownership is vested in no one, even for an instant of time. If the proceedings were regular, the defendant was entitled to a deed, and could compel the delivery thereof by mandamus if the officer refused to execute it. Blackwell on Tax Titles, section 1073. The title evidenced by such a deed subsequently executed would...