Cota v. McDermott
| Decision Date | 20 October 1944 |
| Docket Number | 6918. |
| Citation | 16 N.W.2d 54,73 N.D. 459 |
| Parties | COTA v. McDERMOTT et al. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Chapter 286, Session Laws 1941, providing, among other things, for the giving of notice of expiration of the period of redemption on property sold to the county for delinquent taxes, applies to all tax deed proceedings initiated subsequent to its effective date.
2. Where land is sold on nonpayment of taxes any right of redemption given is wholly statutory, accorded as a matter of legislative favor and grace. And the right to notice of expiration of the period of redemption stands on no different ground, so, in the absence of statutory requirement, no notice need be given.
3. A delinquent taxpayer has no vested right in any existing mode of collecting taxes. There is no contract between him and the taxing authority that the latter will not vary the mode of collection.
4. Where land is sold on nonpayment of taxes, the resulting relationship as between the taxpayer and the taxing authority is not contractual. It results from the taxpayer's delinquency and the whole proceeding is a remedy for such delinquency.
5. A statute providing for the manner of giving notice of expiration of the period of redemption different from that prescribed at the time of tax sale is not subject to challenge on the ground that it impairs a vested right of the delinquent taxpayer.
6. Where the Legislature prescribes the manner in which notice of expiration of the period of redemption shall be given, the requirement thus imposed must be strictly complied with.
7. Where the officer charged with the duty of giving notice of expiration of the period of redemption to the delinquent taxpayer follows the letter of the statute in doing so, the requirement as to service of notice is satisfied though the taxpayer does not receive such notice.
John A. Stormon, of Rolla, for appellant.
Oscar B. Benson, of Bottineau, for respondent.
This is an action to quiet title. Plaintiff claims under a deed from Rolette County, which in turn derived its title through tax sale proceedings. The defendant, Lula McDermott, answered. She alleged that she was the record title owner; that the tax deed, through which plaintiff claimed to derive his title was void for the reason the tax deed proceedings on which it was founded were fatally defective in that no notice of expiration of the period of redemption was served as required by law, either upon her or upon the tenant in possession of the land. She claimed the right to redeem and, in that behalf, tendered the amount of the delinquent taxes and penalty, together with costs as required by the statute. The case was tried to the court and the defendant McDermott had judgment. Whereupon the plaintiff perfected the instant appeal.
There is no dispute as to the facts. The defendant Lula McDermott for many years prior to 1942 had been a resident of Rolette County. Her post office address was Dunseith. She owned the quarter section of land involved in the instant case. Dunseith was the post office nearest to this land and served the residents of the vicinity thereof. In the spring of 1942 McDermott removed with her family to the state of Washington and has since resided there. She left no forwarding address at the Dunseith post office. She had failed to pay her 1937 taxes on the land and it was sold for these taxes in 1938 and, there being no other bidders, a tax sale certificate was issued to Rolette County, pursuant to the statute then in effect (chapter 266, Session Laws 1927, as amended). She made no redemption from the tax sale. In the fall of 1941 the defendant Eurich rented the land and was in possession thereof as tenant when the proceedings to acquire tax title to it were had by Rolette County.
In the spring of 1942, no redemption having been made from the tax sale, the county moved to ripen its tax sale certificate to deed pursuant to the provisions of chapter 286, Session Laws 1941. In that behalf the county procured from the register of deeds and from the clerk of the district court their respective certificates as to the record title owner of the land and as to the mortgage and lien holders and other persons interested and their respective post office addresses as shown by their records. These certificates showed that McDermott was the record title owner and that the Federal Farm Mortgage Corporation was a judgment lien holder. The auditor also checked the records in the office of the county agent and of the Rolette County Agricultural Adjustment Administration and found that there was no record therein as to any tenant occupying or operating the land in question. Thereupon, pursuant to the provisions of chapter 286, supra, the auditor caused notice of expiration of the period of redemption to be published. He also sent the notice by registered mail to the defendant McDermott at Dunseith, her post office address of record as shown by the certificate of the register of deeds, demanded a return receipt and paid the fee therefor. He did likewise with respect to the record lien holder. Subsequently, the postmaster at Dunseith returned the registered letter addressed to McDermott containing the notice of expiration of the period of redemption with a stamped notation thereon that the addressee had not called for her mail, had removed from the community, had left no forwarding address, and that her post office address was unknown. The postmaster, however, did not return the unsigned registry return receipt card. In due course thereafter the auditor filed proof by affidavit of the publication of the notice of expiration of the period of redemption and of the mailing of the registered letters containing such notice, together with the registry receipts given him when he mailed them accompanied by the return receipt signed by the lien holder and by the letter which had been sent to McDermott at Dunseith and returned bearing the postmaster's stamped notation as above set forth. He took no further steps, however, to ascertain McDermott's whereabouts, or make service of the notice upon her. No redemption was made from the tax sale and in due course the auditor issued his tax deed to the county. Thereafter, and in accordance with the provisions of chapter 286, supra, the land in question was appraised and advertised for sale. Plaintiff was the purchaser at the sale and the county's deed, under which he now claims, was issued to him.
The defendant McDermott makes no contention that the proceedings prior to the service of the notice of expiration of the period of redemption were in any way subject to challenge. She predicates her case wholly on two propositions: (1) That there was no sufficient service of the notice of expiration of the period of redemption upon her and (2) that there was no such notice served upon Eurich, the tenant in possession.
In 1938, when the land in question was sold at tax sale, chapter 266, Session Laws 1927 as amended, was in effect. Pursuant to this statute it was necessary when the county proceeded to take deed to land sold to it for nonpayment of taxes, to serve the notice of expiration of the period of redemption personally upon the person, if any, in possession of the land, and also upon the owner if a resident of the county. If the owner was known to be a resident of some other county in the state, such notice was required to be served upon him by registered mail. And if he were not a resident of the state, service was required to be made upon him by registered mail, addressed to him at his post office address, if known to the county auditor, and if not known to him, then to the post office address nearest the land. These provisions of chapter 266, supra, were amended and re-enacted by chapter 235, Session Laws 1939. Chapter 235 required service by registered mail upon the record title owner and also upon the person, if any, in possession of the land. Chapter 235 was in turn repealed by chapter 286, Session Laws 1941, which changed the requirement as to service of notice of the expiration of the period of redemption and, in that behalf, provided in section 4 thereof:
In the instant case the county auditor proceeded on the theory that chapter 286 controlled rather than chapter 266, Session Laws 1927, as amended, the statute in effect when the tax sale was made. It will at once be...
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