Brink v. Curless

• Decision Date: 13 July 1973
• Docket Number: No. 8883,8883
• Citation: 209 N.W.2d 758
• Parties: David Alden BRINK, Plaintiff and Appellant, v. Milo B. CURLESS, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 758

209 N.W.2d 758

David Alden BRINK, Plaintiff and Appellant, v. Milo B. CURLESS, Defendant and Appellee.

Civ. No. 8883.

Supreme Court of North Dakota.

July 13, 1973.

Syllabus by the Court

1. Tax deed proceedings are drastic in nature, and statute requiring service of notice of the expiration of the period of redemption in form and to effect prescribed by statute, before a valid tax title can be acquired by the county, must be strictly complied with in order to terminate the right of the owner to redeem.

2. The provisions in statute requiring county auditor (1) to show separately the amount of delinquent taxes, with penalties and interest due for each year, and (2) to show the total amount which is required to be paid to effect a redemption, and (3) to make and file an affidavit of proof of service of the original notice of the expiration of the period of redemption, with the necessary documents to be attached thereto, are mandatory and jurisdictional. Sections 57--28--03, 57--28--04, and 57--28--07, N.D.C.C.

3. Where notice of expiration of the period of redemption does not show separately the amount of delinquent taxes with penalties and interest due for each year and does not include all subsequent taxes with penalty and interest in addition to the amount for which the land was sold, the notice is fatally defective and invalidates the tax deed proceedings.

4. An affidavit of proof of service of the original notice of the expiration of the period of redemption with necessary documents attached thereto is jurisdictional and must be made and filed in the office of the county auditor before a tax deed can be issued to the county.

5. Tax deed issued to county without strict compliance with the mandatory and jurisdictional requirements of statute is null and void.

6. Under statute providing that tax deed issued to county shall be prima facie evidence of the truth of all facts recited therein and of the regularity of all proceedings from assessments and valuation of land by assessors up to execution of deed, presumption 'that official duty was regularly performed' does not apply when record shows want of strict compliance with jurisdictional requirements.

7. Mistakes, errors or omissions which are jurisdictional in nature or which affect substantial rights of parties are not waived by owner's failure to redeem lands sold for payment of delinquent taxes.

8. For reasons stated in opinion decision of trial court dismissing plaintiff's cause of action upon merits is right and is therefore affirmed.

Conmy, Conmy, Rosenberg & Lucas, Bismarck, for plaintiff and appellant.

Milton K. Higgins, Bismarck, for defendant and appellee.

C. F. KELSCH, District Judge.

This is an action in forcible entry and detainer, brought by the plaintiff to recover possession of certain lots located in the City of Bismarck, together with judgment in the sum of $750 for past-due rentals.

The plaintiff is his complaint claims, in substance:

(1) That he is the owenr of lots 17--18--19--20 and the east 40 feet of vacated Otis Street, Suttle's Addition to the City of Bismarck;

(2) That he leased said premises to the defendant, Milo B. Curless, for a rental of $125 a month;

(3) That the plaintiff served a notice to quit upon said defendant and demanded surrender of the possession of said premises and payment of rents, which said defendant has failed and refused to do.

Plaintiff prays for restitution of said premises and judgment in the sum of $750 for past-due rents.

The defendant, Milo B. Curless, in his amended answer, claims in effect:

(1) That he is the owner of all of the premises described in the complaint;

(2) That the plaintiff's claim of ownership is based upon a tax title which is fatally defective for the reasons:

(a) That the notice of expiration of period of redemption served upon him included 1970 taxes, which were not delinquent at the time the notice was issued; and

(b) That the county auditor of Burleigh County failed to make and file an affidavit of proof of service and to attach the original notice of expiration of the period of redemption, the registration and return receipt thereto, as required by Section 57--28--04, N.D.C.C.

He therefore prayed for a dismissal of plaintiff's action with prejudice and costs.

Obviously, the amended answer put in issue the validity of plaintiff's title to said premises and therefore the judge of the county court issued his certificate transferring said action to the district court of Burleigh County for trial for the reason that he had no jurisdiction to try the title to real property.

Before the action was tried upon its merits the defendant, Milo B. Curless, moved the court to substitute J. F. Meckler as a party defendant, whereupon Meckler deposited the sum of $10,300 in the office of the clerk of the district court of Burleigh County, pursuant to the provisions of Section 57--45--10, N.D.C.C., in order to give him standing to attack the validity of the tax deed proceedings and the county deed issued to the plaintiff pursuant thereto.

The action was tried upon its merits on the 23rd day of March 1972 in the district court of said county, whereupon the trial court held, in effect:

(1) That the county auditor did not strictly comply with the requirements of the controlling statutes and that by reason thereof the notice of the expiration of the period of redemption served upon the record title owner was fatally defective;

(2) That the auditor of Burleigh County failed to make proof of such service by affidavit and to attach the original notice of the expiration of period of redemption together with the registry and return receipts thereto and to file the same in her office as required by law; and

(3) That the tax deed issued to the County of Burleigh was therefore null and void.

Thereafter, on the 11th day of April, the trial court made its findings of fact, conclusions of law, and issued its order for judgment dismissing plaintiff's action upon the merits, with prejudice and costs. Judgment was entered accordingly on the 30th day of June 1972, from which the plaintiff has perfected this appeal within the time and in the manner provided by law.

The appellant's specifications contain six assignments of error, but they present only three specific issues for decision. Precisely stated they are, in effect:

(1) Did the court commit prejudicial error in permitting J. F. Meckler to intervene and to deposit the sum of $10,300 with the clerk of said court before the trial of the action upon the merits was had, to give him standing to attack the validity of plaintiff's title?

(2) Did the auditor of Burleigh County fail to prepare, date, sign and serve a notice of expiration of the period of redemption in the form and to the effect required by Sections 57--28--03 and 57--28--07, N.D.C.C.; and, if so, was the deed executed and delivered by Burleigh County to the plaintiff null and void; and

(3) Did the county auditor of Burleigh County fail to make proof of service of the original notice of the expiration of period of redemption by affidavit and attach said notice, together with the registry and return receipts, thereto, and file the same in her office, as required by Section 57--28--04, N.D.C.C.?

Before we consider the merits of these assignments of error we deem it necessary to set out the material facts established by the undisputed evidence. They are:

(1) That Grace I. Curless, during her lifetime, was the record title owner, in fee simple, of the premises described in the complaint;

(2) That Milo B. Curless claims that the purchase price ofr said premises was paid out of their joint earning; and that Grace I. Curless took the title thereto in her own name without his knowledge and consent; and that by reason thereof he was the owner of an undivided interest in said premises;

(3) That Grace I. Curless died intestate on the 5th day of April 1965 and that neither her legal representative nor her heirs at law paid any of the taxes levied and assessed against said premises for the years 1965 to 1969, inclusive;

(4) That said premises were sold at the annual tax sale held December 11, 1966, for delinquent taxes for the year 1965; and that in absence of any other bidders the county treasurer bid said premises in for Burleigh County (5) That on June 1, 1970, after more than three years had expired from the time of the said sale, Kathryn Kern, the county auditor of Burleigh County, prepared, dated and signed a notice of the expiration of the period of redemption, in the form prescribed by Section 57--28--05, N.D.C.C., which notice contained a correct description of the premises and stated that the total amount necessary to redeem was the sum of $446.

(6) That on June 8, 1970, the county auditor deposited the notice of the expiration of the period of redemption, addressed to Grace I. Curless at 1030 Airport Road, Bismarck, North Dakota, in accordance with the address shown in the certificate of the register of deeds, in the post office in the city of Bismarck, had the same registered as article #3647, and requested a return receipt therefor.

(7) That the county auditor received a return receipt, pursuant to her request, bearing article #3647, signed Grace Curless by M. D. Curless;

(8) That the county auditor did not make proof of service of the original notice of the expiration of period of redemption by affidavit and attach thereto the original notice, together with the registry and return receipts, nor file the affidavit of proof of service in her office, as required by Section 57--28--04, N.D.C.C.;

(9) That neither the administrator of the estate of Grace I. Curless nor any of her heirs at law paid the sum of $446 or any other sum to Burleigh County to effect a redemption of said premises from such tax sale proceedings;

(10) That the plaintiff offered only three exhibits in evidence:

(a) A county deed executed and delivered to the plaintiff on the 1st...