Blakemore v. Cooper
| Decision Date | 18 December 1905 |
| Citation | 105 N.W. 566,15 N.D. 5 |
| Court | North Dakota Supreme Court |
Rehearing denied January 25, 1906.
Appeal from District Court, Cass county; Pollock. J.
Action by Robert B. Blakemore, as executor, and others, against John Cooper and another. Judgment for plaintiff, and defendants appeal.
Modified.
Judgment modified. Appellants recovered their costs on this appeal.
J. E Robinson, for appellant.
A tax title is purely technical as distinguished from a meritorious one, and depends for its validity upon a strict compliance with all the provisions of the statute. Black on Tax Titles section 409; Kern v. Clark, 59 Minn. 70, 60 N.W. 809; Bendixon v. Fenton, 31 N.W. 685; Haller v. Blaco, 10 Neb. 36, 4 N.W. 362; Salmer et al. v. Lathrop et al., 10 S.D. 216-225, 72 N.W. 573; Hiles v. Atlee et al., 90 Wis. 72, 62 N.W. 940; Cooley on Taxation (3d Ed.), 914, 915, 916; Farrington v. N.E. Investment Co. et al., 1 N.D. 102, 45 N.W. 191; Power v. Bowdle, 3 N.D. 107, 54 N.W. 404; Power v. Larabee, 2 N.D. 141, 49 N.W. 724; O'Neil v. Tyler, 3 N.D. 47, 53 N.W. 434; Swenson v. Greeland, 4 N.D. 532, 62 N.W. 603; Roberts v. First National Bank et al., 8 N.D. 504, 79 N.W. 1049; Lee v. Crawford, 10 N.D. 482, 88 N.W. 97; Security Imp. Co. et al. v. Cass County, 9 N.D. 553, 84 N.W. 477; Dever v. Cornwell et al., 10 N.D. 123, 86 N.W. 227.
The defendants were entitled to a trial by jury and the court erred in denying it. Section 5420, Rev. Codes 1899; Grandin et al. v. La Bar, 2 N.D. 206, 50 N.W. 151.
Sales are void, as notices of sale were not published in a legal newspaper. Galbraith v. Payne, 12 N.D. 164, 96 N.W. 258; Melchior v. McCarty, 31 Wis. 252, 254; Wyman v. Baker, 86 N.W. 432.
Also because they did not contain a list of the lands, amount of taxes and penalty due. Laws of 1890, section 68; Laws of 1891, section 273; Dever v. Cornwell, supra.
No legal redemption notices were served. They fail to describe the lands and to state the amount required to redeem. Rev. Laws 1890, section 78; Midland County v. Eby, 93 N.W. 707; White v. Smith, 25 N.W. 115.
When an estate is sold subject to redemption, the time to redeem can neither be lengthened nor shortened by subsequent legislation. Merrill v. Deering, 32 Minn. 479, 21 N.W. 721; Gaston v. Merriam et al., 33 Minn. 271, 22 N.W. 614; Nelson v. Central Land Co., 29 N.W. 121; Cooley on Taxation (3d Ed.), 1034; Moody v. Hoskins, 64 Miss. 468; Blackwell on Tax Titles, section 729.
Redemption and notice thereof are governed by the statute under which the sale was made. Fisher v. Betts et al., 12 N.D. 197, 96 N.W. 136; Kipp v. Johnson, 73 Minn. 34, 75 N.W. 736; Cole v. Lamm, 84 N.W. 329; Roessler v. Romer et al., 99 N.W. 800, 822; Darling v. Purcell, 100 N.W. 726.
Subsequent legislation may provide for redemption notice on prior tax sales if it does not necessarily extend the time to redeem. Curtis v. Whitney et al., 13 Wallace, 68, 80 U.S. 68, 20 L.Ed. 513; Coulter v. Stafford, 56 F. 564; Oullahan v. Sweeney, 79 Cal. 537, 21 P. 960; State v. Hundhausen, 24 Wis. 196; Curtis v. Morrow et al., 24 Wis. 664.
The tax deeds are not made to the purchaser, his heirs or assigns, and are void on their face and not prima facie evidence of title. Laws of 1891, page 271, section 7; Alexander v. Savage, 90 Ala. 383, 8 So. 93.
When a deed is only prima facie evidence, the purchaser takes it subject to the right to overcome this presumption by proof. The matter being open to investigation, the legislature may regulate it, and shift the burden to the purchaser. 30 F. 587; Gage et al. v. Caraher, 17 N.E. 777, 779; Hickox v. Tallman, 38 Barb. 608; Strode v. Washer et al., 16 P. 926; Emeric et al. v. Elvarado, 27 P. 356, 368; Cooley on Taxation (2d Ed.) 297; Cooley on Con. Lim. (6th Ed.) 450, 451; Burbank v. Rumsey, 90 Ill. 555.
Newman, Holt & Frame, for respondent.
This cause was not triable by jury. People, etc., v. Center et. al., 66 Cal. 465, 6 P. 487; Reichelt et al. v. Perry et al., 91 N.W. 459; O'Neil v. Tyler, 3 N.D. 47, 53 N.W. 434; Polack v. Gurnee, 5 P. 229.
The plaintiffs as executor and executrix are the assigns of the deceased tax purchaser. Blackemore et al. v. Roberts, 12 N.D. 394, 96 N.W. 1029; Bouvier Law Dict. (Rawle's Revision) page 182; 4 Cyc. 288; Brown v. Crookston Agri. Ass'n., 26 N.W. 907; Williams on Executors, 559.
Repeal of a statute requiring notice of redemption does not impair the obligation of contract. Black on Tax Title, 350; Robinson v. Howe, 13 Wis. 381, 342; Cooley on Taxation (1st Ed.), page 364; Merrill v. Sherburne, 1 N.H. 199, S. C. 8 Am. Dec. 52; Cooley on Con. Lim. (6th Ed.) 438; Butler v. Palmer, 1 Hill, 324; Smith v. Packard et al., 12 Wis. 414; Baldwin v. Ely et al., 28 N.W. 392, 398; People v. Livingston, 6 Wend. 526.
A law is not retrospective unless such construction is essential to its effect, or its terms are so explicit as to preclude any other interpretation. Caston v. Merriam, 22 N.W. 619; Cooley on Taxation, supra; Roberts v. First National Bank, supra.
Proper notice of tax sale will be presumed. Laws of 1890, ch. 132, section 72; Fisher v. Betts, supra.
The plaintiff brought this action under chapter 5, page 9, Laws 1901, to determine adverse claims to the north 50 feet of lot 6, in block 37, Keeney & Devitt's second addition to the city of Fargo. The plaintiff's interest therein was acquired through purchase at three separate tax sales, to wit, the sales for the 1890, 1892, and 1893 taxes, and upon which tax deeds were issued in 1902. The sales were made to Louis A. Kedney, and tax sale certificates issued to him. The deeds were issued to "Robert B. Blakemore, executor, and Laura B. Kedney, executrix." The complaint alleges that Louis A. Kedney died in 1898; that in his last will and testament he named Robert B. Blakemore as executor, and his widow, Laura B. Kedney, executrix; that the persons so named duly qualified and have not been discharged; that the said Louis A. Kedney devised his entire estate, real, personal and mixed to Robert B. Blakemore and William C. Macfadden in trust for the use and benefit of his wife, Laura B. Kedney, during her widowhood, the remainder to his children per stirpes when they shall have attained the age of 22 years; that Laura B. Kedney was duly appointed guardian of the persons and of the estate of the three children, who are all minors. All of the persons above named are joined as plaintiffs, and allege that they have "an estate and interest in and incumbrance upon" the property above described, and that the defendant claim "certain interests in or estates in or liens or incumbrances upon said premises adverse to these plaintiffs." The prayer is in the statutory form, except that neither possession nor compensation for the use are asked for. The defendants, John Cooper and George McCauley, answered jointly, and expressly deny that the plaintiffs have any right, title or interest in or lien upon the land in question, and allege that in May, 1903, McCauley was the owner in fee of said land and under a patent from the United States government, that he conveyed the same to his codefendant Cooper, and that the latter is now the owner in fee simple and in possession. When the case was called for trial counsel for defendants demanded a trial by jury, stating that the action is in effect an action in ejectment. The request was denied and the case was tried under section 5630, Rev. Codes 1899. The findings of the trial judge were in all respects favorable to the plaintiff, and judgment was entered thereon quieting and confirming plaintiff's title, and adjudging that the adverse claims of the defendants are null and void and enjoining them from further asserting them, and for costs. Defendants have appealed from the judgment, and demand a review of the entire case in this court under the above section.
The preliminary question urged by counsel for defendants in his brief, that the defendants were entitled to a trial by jury does not merit or require discussion. This contention is inconsistent with their attitude upon the record which they have prepared and presented to this court. They have demanded a trial anew under section 5630, Rev. Codes 1899. This section does not authorize retrials in jury cases. In demanding a retrial they necessarily assume that the action is not properly triable to a jury. It is entirely clear, however, that the relief sought in this case is purely equitable and that the case was properly tried under section 5630, supra. The plaintiffs rested their case upon the tax sale certificates and tax deeds. It is urged by counsel for the defendants that the deeds are void because they are issued to "Robert B. Blakemore, executor, and Laura B. Kedney, executrix," instead of Blakemore and Macfadden, who are named in the will as devisees in trust for the benefit of the widow and children. This contention cannot be sustained. Section 110, Laws 1890, chapter 100, page 266, Laws 1891, in addition to providing a form of deed, authorized the issuance of the same to "the purchaser, his heirs or assigns." We are of the opinion that the executor and executrix are the assigns of the testator within the meaning of the above section. An assign or assignee is ...
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