Cruser v. Williams

Decision Date12 July 1904
Citation100 N.W. 721,13 N.D. 284
CourtNorth Dakota Supreme Court

Appeal from District Court, Emmons county; Winchester, J.

Action by W. C. Cruser and W. J. Baker against Erastus A. Williams. Judgment for plaintiffs, and defendant appeals.


Judgment set aside. Appellant recovered costs in both courts.

Herried & Williamson and J. H. Wishek, for appellant.

The holder of a certificate of sale under the Woods law has not the fee simple title until it is perfected by serving notice of expiration of period of redemption, and filing proof of such service with the clerk. No affidavit of service was filed and there was no record of such filing. The clerk, as a court, was exercising special statutory powers in contravention of the common law in a summary way, and nothing will be presumed in favor of the judgment, but the record must show jurisdiction. Galpin v. Page, 18 Wall 350, 21 L.Ed. 959; Thatcher v. Powell, 6 Wheat. 119 5 L.Ed. 221; 12 Am. & Eng. Enc. Law (1st Ed.) 271-277; Emmons County v. Lands of First Nat. Bank of Bismarck, 9 N.D. 583 84 N.W. 379.

Where want of jurisdiction exists no statute of limitations will run. Roberts v. First National Bank, 8 N.D. 504, 79 N.W. 1049.

Possession of land stops the running of the statute of limitations. Baker v. Kelly, 11 Minn. 480; Cooley on Con. Lim. 455.

Shellenberger & Bryan and George W. Lynn, for respondents.

It is incumbent upon appellant to show the giving and filing of the notice of expiration of redemption. No notice of expiration of the right of redemption was given, and consequently no proof of the service thereof is required to be given, where the land is bid off by, or in the name of, the state. State of Minnesota ex rel Western Land Association of Minnesota v. Smith, Co. Auditor, 36 Minn. 456, 32 N.W. 174.



The plaintiffs bring this action to determine adverse claims to 160 acres of land situated in Emmons county. Their claim of title rests upon a sheriff's certificate issued upon a sale under a tax judgment which was entered pursuant to the provisions of chapter 67, p. 76, Laws 1897. The title of the defendant comes directly from the United States government, and it is conceded that he is the owner of the land, unless his title was divested by the tax judgment and sale. The trial court found for the plaintiffs upon all of the issues, and entered judgment sustaining their alleged title and right of possession. The defendant appeals from the judgment, and demands a review of the entire case in this court.

The appellant urges two grounds for reversal: (1) That the tax judgment was entered without jurisdiction, and is void; and (2) that, even if the judgment is valid, title did not pass to plaintiffs, for the reason that notice of expiration of redemption was not served and filed.

In support of their objection to the validity of the judgment it is claimed that no affidavit of publication of the list was filed with the clerk of the district court, as provided for in section 4 of the above act. This section, in addition to requiring the publication of the list in a newspaper designated by the county commissioners, provides that the owner, publisher, manager or foreman of the same "shall make and file with the clerk of the district court an affidavit of such publication." The objection that the affidavit of publication was not filed has no sufficient foundation in fact. Plaintiffs offered the certificate of sale in evidence. Section 15 provides that: "The certificate shall in all cases be prima facie evidence that all the requirements of law with respect to the sale have been duly complied with, and no sale shall be set aside or held invalid unless the party objecting to the same shall prove, either that the court rendering the judgment pursuant to which the sale was made had not jurisdiction to render the judgment, or, that after the judgment and before the sale such judgment had been satisfied." Presumptively, then, the judgment is valid, and the burden of sustaining an attack upon the jurisdiction is upon the plaintiffs. In this they have failed. The only evidence offered for that purpose was that of the clerk of the district court, who testified that he had examined his files, and could not find the affidavit or any record of its filing. He did not state that it had not been filed; neither did he state that it was not then on file. This testimony is entirely too indefinite to overcome the presumption that all of the requirements of the law were complied with and that the affidavit was filed. But were the fact otherwise, it would not alter our conclusion as to the validity of the judgment, for there is neither pretense nor proof that the list was not in fact published; and this court has held, in construing this particular section, that it is the...

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