Biberdorf v. Juhnke

• Decision Date: 06 January 1930
• Docket Number: No. 5629.,5629.
• Citation: 59 N.D. 1,228 N.W. 233
• Parties: BIBERDORF v. JUHNKE et al.
• Court: North Dakota Supreme Court

59 N.D. 1

228 N.W. 233

BIBERDORF

v.JUHNKE et al.

No. 5629.

Supreme Court of North Dakota.

Dec. 5, 1929.

Rehearing Denied Jan. 6, 1930.

Syllabus by the Court.

Tax titles can be acquired only by strict compliance with the statute relating thereto.

The notice of the expiration of the period of redemption required by section 2223, Comp. Laws 1913, must be served upon the owner of the land, as provided by law, in order to start the running of the 90-day period in which redemption may be made, and any person entitled to redeem may redeem at any time before the service of such notice and within 90 days after service.

The proof of the service of notice of the expiration of the period of redemption to be filed with the county auditor before a tax deed is issued must show with reasonable certainty that the statute in regard to notice has been complied with.

The sheriff's return on the notice is competent evidence of the acts he is required by law to perform. The filing of the return showing the statutory service in the office of the county auditor is the auditor's authority for issuing the tax deed, and a deed issued without the statutory proof of service is issued without authority, and cannot cut off the right of redemption.

The execution of a tax deed cannot operate to cut off the right of redemption where proper notice of the expiration of the period of redemption is not served, and a quitclaim deed, executed by the owner of the land to the holder of the tax deed after the issue of such tax deed, cannot be substituted for the service required by law.

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

Action by Jacob Biberdorf against Otto A. Juhnke, Kenyon State Bank of Kenyon, Minn., and others. Judgment for defendant last named, and plaintiff appeals. Affirmed.Albert Weber, of Towner, for appellant.

Bagley & Johnson, of Towner, for respondent.

BURKE, C. J.

This is an action to quiet title to certain lands in McHenry county, N. D. The plaintiff claims under a tax deed issued on the 25th day of March, 1926, on a tax certificate of sale for the nonpayment of taxes for the year 1921.

The defendant, the Kenyon State Bank of Kenyon, Minn., claims the right to redeem from said tax sale, under and by virtue of a mortgage dated November 19, 1921, executed by Otto A. Juhnke then the owner of the land to the Gardena State Bank for the sum of $1,500, which mortgage was duly filed for record on November 22, 1921, and was recorded in book 156 of Mortgages, p. 95, and was on December 5, 1921, assigned to the First National Bank of Minneapolis, and on January 19, 1925, duly assigned by the First National Bank of Minneapolis to the Kenyon State Bank of Kenyon. Both assignments were duly recorded in the office of register of deeds in McHenry county on January 26, 1927. The defendant, the Kenyon State Bank of Kenyon, alleges that it is willing, able, and hereby offers to tender, and pay into court, for the use and benefit of the plaintiff, or the person entitled thereto, any and all unpaid and delinquent taxes on said real estate, commencing with the taxes for the year 1921, together with all interest and penalty and just and proper expenses.

At the trial it was stipulated that, in case the defendant should have judgment for the relief prayed for in defendant's answer, the amount of taxes, penalty, and interest paid by the plaintiff as compiled by the county auditor was correct, and the defendant offered to tender the said amount in court at the trial, or at any time that the court might direct the payment of said taxes. It was further stipulated that the only point at issue in the action was the sufficiency of the service of notice of the expiration of the time of redemption before the issuing of the tax deed.

The trial court made findings of fact and conclusions of law for the defendant, and, from judgment entered thereon, the plaintiff appeals. The only question involved under the stipulation is, Was there a service of noticeof the expiration of the time of redemption from the tax sale as provided by law? Section 2223, Comp. Laws 1913, provides:

“Every person holding a tax certificate shall, at least ninety days before the expiration of the time for the redemption of the lands therein described, present such certificate to the county auditor and thereupon the auditor shall prepare, under his hand and official seal, a notice to the person in whose name such lands are assessed, specifying the description of such lands, the amount for which the same were sold, the amount required to redeem such lands from sale, * * * and the time when the redemption period will expire, which notice the auditor shall cause to be delivered to the sheriff or his deputy who shall serve it personally upon the owner, if known to be a resident of the state, but which may if the owner be a nonresident be given by registered letter, addressed to such owner at his last known post office address, and by publication once in each week, for three consecutive weeks, in some newspaper printed and published in the county where such lands are situated. * * * Proof of notice herein provided for must be filed in the office of the county auditor prior to the maturing of such certificate, and no deed shall issue until such proof has been duly filed.”

The notice was issued by the auditor on the 9th day of November, 1925, and the sheriff's return is as follows:

“I Carl Hanson, sheriff of said county, hereby certify and return that the foregoing notice was delivered to me by C. J. Knutson, county auditor, for service and return on the ninth day of November A. D. 1925, that I have made a diligent search throughout my county for the within named Otto A. Juhnke record title owner to serve the within notice upon him and that he cannot be found in my county, and that there is no person in actual possession of said land, that I served the within notice upon the Gardena State Bank, mortgagee being a nonresident of the state, by sending a true and correct copy thereof by registered mail to Gardena, North Dakota, his last known post office address, as provided by law on the 25th day of November 1925.

Carl Hanson (Sheriff).”

When the auditor was upon the stand as a witness to testify to the tax deed record, the attorney for the appellant stated: “I stipulate that exhibit five, being page 39 of tax deed record number five of McHenry County is the auditor's record of the proceedings leading up to the tax deed exhibit one, being number fourteen of the abstract defendant's exhibit three, and that the same may be received in evidence, together with the sheriff's return on the back thereof and affidavit of publication and receipt.” Upon this stipulation the record was admitted in evidence, “the auditor's record leading up to the tax deed with the sheriff's return on the back thereof,” as heretofore quoted in full.

[4] The return shows that the notice was published and a copy sent by registered mail to the Gardena State Bank, but it does not show that it was served upon Juhnke personally; it does not show that a copy of the notice was sent to Juhnke by registered mail, addressed to his last known post office address; it does not show that any attempt was made to make personal service upon Juhnke outside of McHenry county; and it does not show that Juhnke was a nonresident of the state.

“The proof of notice must show with reasonable certainty that requirements of the statute in regard to notice have been complied with.” Cooley on Taxation, § 5770.

Section 855, Murfree on Sheriffs, states the rule as follows:

“The purpose designed to be accomplished by the return of process placed in the hands of the sheriff, is that by it he may show what he has done in the matter, and what he has omitted to do, and why.”

Section 857, Id.

“It is his duty to act and to return such a statement of his acts to the court, that it can perform its duty and judge of the sufficiency of those acts. The return of the officer is the only competent evidence of the acts he performs, and upon that evidence the court must decide the question of their legality. Perry v. Dover, 12 Pick. (Mass.) 206, 212;Davis v. Maynard, 9 Mass. 242, 246;Merritt v. White, 37 Miss. 438;Wellington v. Gale, 13 Mass. 438, 489;Eddy v. Knap, 2 Mass. 154;Purrington v. Loring, 7 Mass. 388;Henry v. Tilson, 19 Vt. 447. See, also, Russ v. Gilman, 16 Me. 209;Williams v. Amory, 14 Mass. 20;Metcalf v. Gillet, 5 Conn. 400;Delaplaine v. Hitchock, 6 Hill (N. Y.) 14; Goodright v. Probst, 1 Yeates (Pa.) 300.”

To the same effect, 4 Jones on Evidence, § 1901, p. 3534.

“A return is generally prima facie evidence, of those matters which the law requires the officer to certify even as between strangers to the suit. Hence, where an officer performs an act in pursuance of a duty enjoined on him by law, his official statement of its performance is...