Darling v. Purcell
| Decision Date | 12 July 1904 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Sargent county; Cowan, J.
Action by Charles W. Darling and E. D. Angell against W. E. Purcell and others. Judgment for defendants, and plaintiffs appeal.
Reversed.
Judgment vacated, with costs in the district court. Appellants recovered costs in this court.
J. E Robinson, Newman, Spalding & Stambaugh and Wicks, Paige & Lamb, for appellants.
The tax judgment is void.
Certificate to copy of resolution designating paper, does not show that it is a copy, and is fatally defective. Sykes v Beck, 12 N.D. 242, 96 N.W. 844.
Certified copy of such paper must be filed with the clerk of court. Cass County v. Security Improvement Co., 7 N.D. 528 75 N.W. 775.
The word "seal" within a scroll is not a sufficient representation of the county seal, or official seal of the county auditor. Hiles v. Atlee, 62 N.W. 940.
Advertisement must correctly state the amount of tax. Cooley on Taxation 935. A tax judgment for an excessive amount is void. Coombs v. Goff, 20 N.E. 9; Fuller v. Shedd, 44 N.E. 286.
The sale is void; it was made on a judgment that included an illegal item of sheriff's fees. Wilson v. Cass County, 8 N.D. 456, 79 N.W. 985.
Where the statute provides a particular form of tax certificate or tax deed, it must be strictly pursued, or such deed or certificate will be void. Hubbell v. Campbell, 56 Cal. 527; Grimm v. O'Connell, 54 Cal. 522; Lain v. Cook, 15 Wis. 446; Haller v. Blaco, 4 N.W. 362; Thompson v. Merriam, 20 N.W. 24.
The certificate described only one tract sold for $ 22,344.58. It should state the amount that each tract was sold for. Laws of 1897, page 84. The assignment of the tax certificate is void, as it was made more than two years from date of sale. Laws of 1899, page 85. The tax deed is void on its face. The tax deed is signed by the county auditor without any designation of his official capacity. Such deed is void. 2 Blackwell on Tax Titles, sections 865, 870; Spear v. Ditty, 9 Vt. 282; Isaac v. Shattuck, 12 Vt. 668.
Where the statute does not prescribe the form of tax deed, the conditions from which the power arises must be recited therein. Cooley on Taxation, (3d Ed.) 997; Cogel v. Ralph, 24 Minn. 198; Bonham v. Weymouth, et al., 38 N.W. 805; Call v. Dearborn, 21 Wis. 510; Baldwin v. Merriam, 20 N.W. 250; Ludden v. Hansen, 22 N.W. 766; West v. St. Paul & N. P. Ry. Co., 41 N.W. 1031; Gilfillan v. Chatterton, 37 N.W. 583.
The tax title is void as no redemption notice was served. Cooley on Taxation (3d Ed.) 1034; Smith v. Smith, 32 N.W. 174.
Statutes of limitation, in tax matters, have no force against jurisdictional defects, such as appear in this case. Roberts v. First National Bank of Fargo, 8 N.D. 504, 79 N.W. 1049; Hegar v. De Groat, 3 N.D. 354, 56 N.W. 150. Such a statute merely fixes a time when a bad title or a void procedure ripens into a good title. It does not give repose to possession. Cooley on Taxation (2d Ed.) 555, 567; Cooley's Con. Lim. 447, 449; Grosbeck v. Seeley, 13 Mich. 329; Baker v. Kelly, 11 Minn. 480; Conway v. Cable, 37 Ill. 82; Waln v. Shearman, 8 Sargent & Rawley, 357; Kipp v. Johnson, 31 Minn. 360; Farrar v. Clark, 85 Ind. 449; Gave v. Root, 93 Ind. 256; Case v. Dean, 16 Mich. 12; Quinlan v. Rogers, 12 Mich. 168; Baldwin v. Merriam, 20 N.W. 250; Feller v. Clark, 31 N.W. 175; Blackwell on Tax Titles (5th Ed.) 895, 897, 944, 945; Cooley on Con. Lim. (6th Ed.) 449; Cooley on Taxation (2d Ed.) 557.
A strict construction is always given to statutory proceedings to divest a citizen of his property for a nominal consideration. Farrington v. N.E. Investment Co., 1 N.D. 102, 45 N.W. 191; Power v. Bowdle, 3 N.D. 107, 54 N.W. 404; Power v. Larabee, 2 N.D. 141, 49 N.W. 724; O'Neill v. Tyler, 3 N.D. 47, 53 N.W. 434; Swenson v. Greenland, 4 N.D. 532, 62 N.W. 603; Roberts v. First Nat. Bank of Fargo, 8 N.D. 504, 79 N.W. 1049; Lee v. Crawford, 10 N.D. 482, 88 N.W. 97; Security Imp. Co. v. Cass County, 9 N.D. 553, 84 N.W. 477; Sweigle v. Gates, 9 N.D. 538, 84 N.W. 481; Dever v. Cornwell, 10 N.D. 123, 86 N.W. 227; Hegar v. De Groat, 3 N.D. 354, 56 N.W. 150.
A tax title is purely technical as distinguished from a meritorious one, and depends for its validity on a strict compliance with the statute. Black on Tax Titles, section 409; Kern v. Clarke, 60 N.W. 809; Bendixon v. Fenton, 31 N.W. 685; Haller v. Blaco, 4 N.W. 362; Hiles v. Atlee, 62 N.W. 940; Salmer v. Lathrop, 72 N.W. 570.
Purcell, Bradley & Divet, for respondents.
The "Woods Law," so called, is constitutional. It was adopted from Minnesota and has been there sustained. Wells County v. McHenry, 7 N.D. 246, 74 N.W. 241; Emmons Co. v. Lands of First Nat. Bank of Bismarck, 9 N.D. 583; 84 N.W. 379; Emmons Co. v. Thompson, 9 N.D. 598, 84 N.W. 385; State v. Lands of Redwood County, 42 N.W. 473; Winona and St. Peter Land Co. v. State of Minnesota, 159 U.S. 526, 16 S.Ct. 83; State v. Weyerhauser, 71 N.W. 265.
The omission of the county seal from the certified copy of the resolution designating the delinquent tax list was not fatal. Paine v. French, 4 Ohio 318; Fund Commissioners v. Glass et al. 15 Ohio 542; Ashley v. Wright, 19 Ohio St. 291; Franum v. Buffman, 58 Mass. 260.
The auditor is authorized to certify, but no form of certificate is prescribed. The law does not declare that the certificate must be under seal. Where the law declares that certain things must be done in a certain manner, it is presumed to have declared all things that are to be so done. See Maxwell v. Hartman, 8 N.W. 103, Baze v. Arper, 6 Minn. 220; Thomas v. Morgan, 6 Minn. 292, Gil. 199.
The tax list was properly published. It is claimed that the list as published differs from the one filed, in that the column for the town and range is omitted in the printed list, and the number of the town and range set opposite each description. This raises the question of cross line description, that is, setting down the town and range at the head of the column instead of repeating them in each description. This method is upheld. McQuaide v. Jeffrey, 50 N.W. 233.
The published list need not be an exact copy of the filed list to confer jurisdiction. Choteau v. Hunt, 46 N.W. 341; McQuaide v. Jaffrey, supra; Sperry v. Goodwin, 46 N.W. 328; Lane v. Innes, 45 N.W. 4; Sharp v. Daugney, 33 Cal. 505.
That the judgment is for an excessive amount does not invalidate it. A judgment is not liable to collateral attack, because of a mistake in ascertaining an amount to be entered therein, or other irregularity. McCulloch v. Estes, 25 P. 724; Gregory v. Bouvier, 19 P. 232; Griswold v. Stoten, 84 Amer. Dec. 409; Hilton v. Dumphey, 71 N.W. 527.
The sale is not subject to collateral attack. Jaggard on Taxation, section 100; Van Vleet on Collateral Attack, sections 787-8; Hilton v. Dumphy, supra.
No notice of expiration of the period of redemption was required to be made by the county. The provisions for giving such notice apply only to individuals. State ex rel v. Smith, 32 N.W. 174.
This action is barred by the statute of limitations found in the Woods Act, section 15. The exceptions to such statutes are found in Roberts v. First National Bank, 8 N.D. 504, 79 N.W. 1049. See, also, Oconto Co. v. Jerrard, 46 Wis. 307; Geekie v. Kirby Carpenter Co., 106 U.S. 379, 27 L.Ed. 157; Terry v. Anderson, 95 U.S. 635, 24 L.Ed. 365; Williams v. Supervisors, 122 U.S. 154, 30 L.Ed. 1088; In re Brown, 135 U.S. 662, 34 L.Ed. 316, 10 S.Ct. 972; Bronson v. St. Croix Lbr. Co. 46 N.W. 570; Coulter v. Stafford, 48 F. 266; Imp. Co. v. Bardon, 45 F. 706; Ensign v. Barse, 14 N.E. 400, 15 N.E. 401; Ostrander v. Darling, 27 N.E. 353; Freeman v. Thayer, 33 Me. 83; Pillow v. Roberts, 13 How. 472, 14 L.Ed. 228; Turner v. New York, 106 U.S. 90, 42 L.Ed. 392, 18 S.Ct. 38; Dunda v. Harlan, 25 P. 883; Martin v. Garrett, 30 P. 168; Dalrymple v. City of Milwaukee, 10 N.W. 141; Manseau v. Edwards, 10 N.W. 554; Hotson v. Wetherby, 60 N.W. 423; Dupen v. Wetherby, 48 N.W. 378; Wisconsin Cent. Ry. Co. v. Lincoln, 30 N.W. 619; Sherry v. Gilmore, 17 N.W. 252; Haselton v. Simpson, 17 N.W. 332; Edwards v. Sims, 19 P. 710; Terrell v. Wheeler, 123 N.Y. 76, 25 N.E. 329; Smith v. Buffalo, 159 N.Y. 427, 54 N.E. 62.
Newman, Spalding & Stambaugh, for parties in other cases similarly interested.
Sale was not complete until the sheriff's certificate was issued. Section 15, Woods law. Title could not vest until notice of maturity had been given and proof thereof filed with the clerk of the District Court. Section 14, Ch. 67, Laws of 1897.
The section requires a certificate to be issued to the county. Ch. 1, section 124, Laws of 1875 of Minnesota, is identical with the law in this state. Gilfillan v. Chatterton, 33 N.W. 35; Stewart v. Minneapolis & St. L. Ry. Co. 31 N.W. 351; Kipp et al. v. Hill et al., 41 N.W. 970; Vander Linde et al. v. Canfield et al., 42 N.W. 538.
The certificate under the Woods law is not made prima facie evidence of title. It is only prima facie evidence that all requirements of law have been complied with regarding the sale, and conclusive notice that the due notice of sale was given. Section 15.
The burden of proof is, therefore, on respondent to show by competent evidence that all provisions of section 14 have been complied with. Nelson v. Central Land Co., 29 N.W. 121.
The deed given by the auditor was not the one that he was authorized to make, and in making it he exceeded his jurisdiction. It does not contain the recitals necessary to its validity.
The deed must recite a compliance with all the terms of the power and the existence of the facts essential to its validity. Jaggard, Tax Titles, 466, 467; Blackwell, Tax...
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