Blakemore v. Roberts

• Decision Date: 14 October 1903
• Court: North Dakota Supreme Court

96 N.W. 1029

12 N.D. 394

ROBERT B. BLAKEMORE, EXECUTOR, AND LAURA B. KEDNEY, EXECUTRIX, v. MATILDA M. ROBERTS

Supreme Court of North Dakota

October 14, 1903

Appeal from District Court, Cass county; Pollock, J.

Action by Robert B. Blakemore and others against Matilda M. Roberts. Judgment for plaintiffs, and defendant appeals.

Affirmed.

J. E Robinson, for appellant.

Merely averring that the plaintiffs were the owners and holders of tax certificates does not state a cause of action. Swenson v. Greenland, 4 N.D. 532, 62 N.W. 603; Ball v. Dangerfield, 26 Minn. 307, 3 N.W. 698; 2 Blackwell on Tax Titles (5th Ed.) sections 1089-1091.

The owner and holder of a mere tax certificate has no right to bring an action to quiet his title or claim to land. Boardman v. Boozewinkel, 121 Mich. 320, 80 N.W. 37.

The plaintiffs have no legal capacity to sue. Their appointment as executors does not transfer to them title to the real property of their testator. It descends to his heirs or devisees, not to his executors. The heir only can maintain an action based on the tax certificate. Rice v. White, 8 Ohio 216; Revised Codes, section 6466; Flood, Admr. v Pilgrim, 32 Wis. 376.

Newman Spalding & Stambaugh, for respondents.

Decedent had the right to rents and profits of the land in suit at the time of his death. The tax certificate vested in him the entire beneficial interest in such lands including such rents and profits, and the possession, and he was the equitable owner of the property provided his certificates were valid. This title descended to his heirs subject to the right of possession of his executors, who could maintain an action for possession in the same courts that were open to their testator. Rev. Codes, section 6461. The only question is the sufficiency of the complaint.

The plaintiffs must allege and prove that certificates were issued and more than three years had elapsed since the tax sale. The allegation that such certificates were issued is equivalent to an allegation of all the facts that led up to the issuance of them. Hibernia S. & L. Soc. v Ordway, 38 Cal. 679; Durbin v. Plato, 47 Wis. 484.

The tax certificate is prima facie evidence of the validity of the sale, and all facts tending to show their invalidity are matters of defense. The certificate showing a complete case, plaintiff would be entitled to judgment for possession upon default.

The complaint is the statutory form prescribed by chapter 5, Laws of 1901. It cannot be held demurrable as long as it contains the statutory allegations therein provided. The allegations of sale and delivery of the certificates would be simply irrelevant and redundant, to be attacked on motion.

The objection that causes of action are not properly united, cannot be sustained. The relief sought is possession of the premises. If the allegations regarding the certificates are true, plaintiffs are entitled to judgment for possession whether the right rests upon one or more of such certificates. They are not separate causes of action, and if they were, should be attacked by motion, not demurrer.

OPINION

MORGAN, J.

The complaint in this case states the following facts, after proper allegations as to the death of Louis A. Kedney and the appointment of the plaintiffs as the executors of his last will, viz.: (1) That in his lifetime, and in the year 1891, said Kedney purchased the following described premises, to wit: * * * at the sale for delinquent taxes of the years 1889 and 1890, and that a certificate of such purchase and sale was thereupon made and delivered to him by the auditor of Cass county; (2) that said Kedney purchased said lots in the years 1893 and 1894 at the sale for delinquent taxes held for those years, and that said auditor made and delivered to him certificates of such purchases; (3) that no tax deeds have been issued upon either of said certificates, and that plaintiffs are owners and holders of such certificates of sale; (4) that plaintiffs have a lien or incumbrance upon said premises by reason of said certificates of tax sale; (5) that the defendant claims certain estates in and liens upon said premises adverse to the plaintiffs. The relief prayed for is that defendant be required to set forth her adverse claims, and that the same be adjudged void; (2) that title be quieted as to such claims, and the defendant barred and enjoined from further asserting them; (3) that plaintiffs recover possession of the premises; and (4) general relief, with costs and disbursements.

The defendant demurred to the complaint on the grounds: (1) That plaintiffs have not legal capacity to sue; (2) that several causes of action have been improperly united; (3) that the complaint does not state facts sufficient to constitute a cause of action. The trial court overruled the demurrer, and defendant appeals from the order overruling the demurrer.

The objection to the complaint principally relied on by the appellant is that no facts are alleged showing that the lien on which the action is based is a valid one, and based on valid and regular tax proceedings as to assessment and levy. The statute under which the complaint is framed is chapter 5, p. 9, Laws 1901. That law prescribes a form that may be used in actions to determine adverse claims, and this complaint contains every allegation required by that law to be stated in such an action, and is in fact a full and almost literal compliance with that law so far as the allegations are prescribed by the same. The statute having prescribed a form of complaint in an action to determine adverse claims, and plaintiffs having a complaint fully meeting the requirements of that statute, we hold it not subject to demurrer. It is well settled that the legislature has the power to prescribe forms of complaints, and, having done so, such complaints will be held good if the statutory requirements are complied with, although such prescribed form may not comply with common law rules of pleading.

It is urged that the complaint is not framed under chapter 5, p. 9, Laws 1901, for the reason that it alleges that the lien relied on is a tax lien. The contention is that plaintiffs have set forth more facts than are required by law, and are therefore not within its provisions. We see no force in the contention. The fact that the complaint alleges that the lien relied on is held "by reason of each of said certificates of tax sale" is not sufficient to warrant us in holding that a cause of action to determine adverse claims is not pleaded, in view of all the other allegations of the complaint. These additional words do not make the complaint other or different than a complaint under chapter 5, Id. The allegations show a cause of action based on a lien. Wilson v. Hooser, 72 Wis. 420, 39 N.W. 772. If the complaint showed on its face that the lien pleaded is an invalid one, the rule would be different. The fact that more facts are pleaded than necessary under the statute does not render the complaint demurrable if the required facts are stated and no other or different cause of action is stated. We find no warrant for holding that the plaintiffs have waived the statutory form of complaint or elected to plead another. The defendant relies on the case of Swenson v. Greenland, 4 N.D. 532, 62 N.W. 603. That case is not applicable to this one. This complaint is authorized and its form prescribed by statute. It is therefore excepted from the principles applied in that case to an action for the foreclosure of a tax lien. The case of Walton v. Perkins, 28 Minn. 413, 10 N.W. 424, is also claimed to be in point. But we do not so understand it. In that case the complaint was defective as a complaint in an equitable action to cancel a mortgage which was a cloud upon a title to land. The court refused to sustain the complaint as sufficient under the statute which provided for settlement of adverse claims. The case of Bell v. Dangerfield, 26 Minn. 307, 3 N.W. 698, is also relied on to support appellant's contention on this point. That was a case in which the general rules of pleading applied. In this case the statute provides what the complaint shall state. The case is not therefore in point.

The next objection urged against the complaint is that several causes of action are therein improperly united. The contention is that a cause of action is stated as to the lien derived from the sale during each of the years mentioned in the complaint. The liens mentioned in the complaint, do not constitute a cause of action. The cause of action is that defendant claims an interest in the lots adverse to plaintiffs' interest therein as represented by the several tax liens. The relief sought is that the defendant be required to set forth those adverse claims, and that they be declared invalid by the court, and that plaintiffs have possession of the lots. No different relief is sought or can be granted than would follow if one lien only had been pleaded. The facts stated in the complaint do not state more than one cause of action.

The last objection urged to the complaint is that the plaintiffs have not legal capacity to sue, that the action pertains to real property, and that executors have no authority to bring such actions, but that such actions can be brought only by the heirs. The powers and duties of executors and administrators are prescribed by statute, and, unless such actions are authorized to be brought and maintained by executors or administrators, the d...