Budge v. City of Grand Forks
| Decision Date | 29 November 1890 |
| Parties | Budge v. City of Grand Forks. |
| Court | North Dakota Supreme Court |
Budge
v.
City of Grand Forks.
Supreme Court of North Dakota.
Nov. 29, 1890.
1. Plaintiff's assignor purchased certain real estate at tax-sale thereof for non-payment of an assessment for street improvement made by the authorities of the defendant city. The city had jurisdiction to make the assessment and sell the assessed property for non-payment, but, by reason of irregularities in the proceedings leading up to the sale, the tax-sale certificates issued by the city treasurer to the purchaser were subsequently decreed to be invalid. Held, that the tax-sale purchaser bought under the rule of caveat emptor, and, in the absence of a statute authorizing it, had no right of action against the city for the purchase money paid for such invalid tax-sale certificates, and the rule is none the less applicable because the sale was made for the exclusive benefit of the city defendant.
2. Held, further, that the recital in such certificate that the purchaser would be entitled to a deed at a specified time was of no force as a covenant for a deed, and added nothing to the force of the statutory provision to same effect.
3. Held, also, that a subsequent statute, authorizing municipalities to reassess for street improvements where a former assessment was for any cause invalid, as to all property upon which such former assessment had not been paid, was intended for the benefit of the taxing municipalities only, and that where such municipality had received the amount of the former assessment by the sale of the assessed property, the right of such municipality to assess such property for such improvement was extinguished, and could not be reasserted, and no power of reassessment as to such property was given by such statute.
Appeal from district court, Grand Forks county; Charles F. Templeton, Judge.
Cyrus Wellington and J. H. Bosard, for appellant. Arthur J. O'Keefe, for respondent.
Bartholomew, J.
This action was originally commenced by Jacob S. Eshelman. Pending the action Eshelman died, and his administrator assigned the claim on which the suit was brought to the plaintiff, William Budge, who was substituted as plaintiff by order of court, and filed an amended complaint alleging, in substance, that the defendant is a municipal corporation. That in 1883 the defendant caused Kitson avenue, in said city, to be filled in and graded. That the mayor and council of said city, by ordinance duly passed, attempted to levy a special tax to pay for said filling and grading upon the property abutting upon said avenue. That subsequently thereto, the said special tax not having been paid, and about March 13, 1884, the said mayor and council, under an ordinance duly passed, caused the real estate upon which said special tax was levied to be sold to pay the same, and that upon such sale all of said property was purchased by one Jacob S. Eshelman;
[47 N.W. 391]
and the defendant city, through its treasurer, and in pursuance of an ordinance duly passed, caused 18 certificates of sale to be issued to said Eshelman, in each of which it was stated that the property therein described had been sold for a delinquent special tax, as provided by law, specifying the purposes of the tax and the person to whom and the amount for which the sale was made, and stating that if not redeemed the purchaser would be entitled to a deed on and after a certain time, upon the surrender of the certificate. That Eshelman paid the city of Grand Forks and said city received for said certificates the sum of $1,810.85, and that by virtue of an ordinance duly passed the city appropriated said sum to its own use, and paid the same out for municipal purposes. That said special tax, and the sale thereunder, and the certificates issued to Eshelman, and all of said ordinances, except the last, were void for the following reasons: The mayor and council did not, before filling and grading said avenue, or at any time, or in any manner, declare such work or improvement necessary to be done, nor did they cause to be published a resolution that said work was necessary to be done for four successive weeks in an official newspaper in said city, nor in any other manner. That, in a proper action in the district court for Grand Forks county, brought by the property owners against the city of Grand Forks and Jacob S. Eshelman, and on December 3, 1886, it was by the said court duly adjudged and decreed that said special tax and said tax certificates were void, and said Eshelman was ordered to deliver up said tax certificates for cancellation, and the city was perpetually enjoined from issuing any deeds upon said certificates. Then follows the allegations that the claim was duly presented and disallowed, and subsequently assigned to plaintiff, with prayer for judgment for $1,810.85 and interest since March 12, 1884. To this complaint defendant filed a demurrer, on the ground that the facts stated did not constitute a cause of action. The demurrer was sustained, and judgment entered dismissing the complaint, and plaintiff appeals.
It is alleged in the complaint that the tax certificates issued by the city to appellant's assignor were absolutely void for certain specified reasons. The supreme court of Dakota territory held those reasons sufficient. See McLauren v. City of Grand Forks, 43 N. W. Rep. 710. The charter of the city of Grand Forks authorized the city to fill and grade its streets, and assess the expense thereof upon abutting property, and to sell such property at tax-sale to satisfy such assessment, unless the same was paid as the charter prescribed; but before the city could proceed to grade and fill any particular street, the city council was required, by resolution, to declare such improvement necessary, and to cause such resolution to be published in an official paper for four consecutive weeks. This duty the city council entirely neglected to perform, and for that cause the territorial supreme court declared that the purchaser took nothing by the tax-sale. Whatever right to recover the purchase money he may have had is here sought to be enforced by his assignor. It is not claimed that there is any express statute authorizing a recovery. Appellant's position is that a purchaser at a tax-sale of a void tax-sale certificate may, on common-law principles, in an action for money had and received, recover the consideration paid from the municipality for whose use and benefit the tax was levied and which received the benefit of the consideration. Preliminary to any investigation of this position, we notice...
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