Eikevik v. Lee
| Decision Date | 05 February 1944 |
| Docket Number | 6902. |
| Citation | 13 N.W.2d 94,73 N.D. 197 |
| Parties | EIKEVIK v. LEE et al. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. In an action to determine adverse claims brought by a landlord, a tenant is not estopped from asserting a title adverse to his landlord upon issues not arising out of the relationship of landlord and tenant. The decisions of this court in Hebden v. Bina, 17 N.D. 235, 116 N.W. 85,138 Am.St.Rep. 700 and Wood v. Homelvig, 68 N.D. 735, 283 N.W. 278, are not conflicting.
2. A certificate of tax sale issued by a county to a private purchaser constitutes a contract and the legislature cannot subsequently disturb rights acquired thereby.
3. A sale of real estate to a county for taxes creates no vested right in the county to a tax deed at the end of the period of redemption then existing. The legislature may subsequently extend such period and grant a further time to redeem.
4. A notice of expiration of period of redemption from a tax sale that incorrectly states a shorter period than the statute allows is fatally defective.
5. The notice that sec. 18, chapter 286, Sess.Laws N.D.1941 requires to be given to the original owner or his successor in interest, of an impending private sale of property acquired by the county through tax deed proceedings, does not cure prior fatal defects in such proceedings.
6. In an action to determine adverse claims based upon a purported tax title, the failure of a defending original owner to make the tender prescribed by section 21, chapter 286, Sess.Laws N.D.1941, bars the granting of affirmative relief to such owner but neither deprives him of any rights in the property nor vests in the plaintiff a title which he does not otherwise have.
O B. Benson, of Bottineau, and C. F. Kelsch, of Mandan (on oral argument), for appellants.
John A. Stormon, of Rolla, for respondent.
This is an action to determine adverse claims to real property. The plaintiff is the grantee in a deed dated July 9, 1942, from Rolette County, North Dakota, purporting to convey a quarter section of land which according to a recitation in the deed became the property of the county on account of nonpayment of taxes for the years 1928 to 1938 inclusive.
The defendant, Syver M. Lee, is the original owner of the premises. He failed to pay the 1927 taxes. On December 11 1928, the property was sold to Rolette County at tax sale and a certificate of tax sale was issued to the county on that day. The taxes for 1928, 1929 and 1930 were not paid. On December 28, 1931, the defendant, Lee, redeemed from the tax sale certificate issued in 1928 by paying the 1927 taxes, interest and penalty, whereupon a subsequent tax sale certificate was issued to Rolette County for the 1928, 1929 and 1930 taxes which still remained unpaid. Thereafter no further taxes were paid and those levied for the years 1931 to 1938 inclusive also became delinquent.
On January 3, 1940, the county auditor of Rolette County issued a notice of expiration of period of redemption to Syver M. Lee describing the land and the amount necessary to redeem which was $1256.04. The notice stated that: "Unless redemption is made from such tax sale within ninety days from the date of this notice appearing above my signature tax deed will be issued to the county granting to it and vesting in it absolute title in fee to said property and foreclosing all rights of redemption, and any and all other rights of the owner and of all mortgagees and lien holders and other persons interested therein." This notice was personally served on the defendant, Lee, by the sheriff of Rolette County and published as provided by statute. No redemption was made and on October 2, 1940, the county auditor executed and delivered to Rolette County a tax deed for the premises.
On January 23, 1942, the plaintiff offered to purchase the land from the county under contract for deed in accordance with the provisions of chapter 286, Sess.Laws N.D.1941. In conformity with the provisions of said chapter the sale was held in abeyance for thirty days and the defendant, Lee, was given notice by registered mail as provided by section 18. No redemption having been made, the county sold the land on contract to the plaintiff on March 4, 1942. Upon payment of the balance of the purchase price to the county on July 9, 1942, a deed was issued to the plaintiff by the county under which he claims title in this action.
It further appears that the defendant, Lee, on the fifth day of March, 1942, leased the premises by a written contract from the plaintiff. The lease expired October 1, 1942. Lee remained in possession at the time of trial.
The plaintiff contends that Lee is his tenant and that he is therefore estopped from challenging the title of the plaintiff, who is the landlord. Plaintiff would invoke the general rule that a tenant is estopped to deny his landlord's title during the continuation of the relationship of landlord and tenant and may not avail himself of infirmities in the landlord's title. That rule is subject to at least one notable exception which has been recognized by this court in Hebden v. Bina, 17 N.D. 235, 116 N.W. 85, 87, 138 Am.St.Rep. 700. It is said: "Conceding that appellant succeeded in establishing that defendant was holding merely as his tenant, it is well settled that a tenant is not estopped to deny his landlord's title in an action such as this, but he is thus estopped merely in actions arising out of the relation of landlord and tenant." That case involved a statutory action to determine adverse claims to real property and is directly in point. The exception thus stated was later recognized in Lincoln Nat. Life Ins. Co. v. Sampson, 61 N.D. 611, 239 N.W. 245. The exception, although of somewhat recent origin, has been applied in many cases where the landlord seeks a judgment that will preclude the tenant as to an interest in the land greater than is necessary to support the tenancy. See cases cited in the following notes. 89 A.L.R. 1295, 29 L.R.A.,N.S., 85, Annotated Cases 1912D, p. 104. In this case there is no issue involving the lease. The plaintiff seeks to determine all adverse claims in his favor and establish the fee title in himself. Thus he would preclude or destroy any title which the tenant might have in the fee itself. The operation of estoppel would be inequitable. This is clearly a case wherein it does not apply.
It is urged that the case of Hebden v. Bina, supra, is overruled by Wood v. Homelvig, 68 N.D. 735, 283 N.W. 278. The two cases are not conflicting. In the latter case the county obtained a tax deed and sold the land to the tenant. It appeared that it was the duty of the tenant to pay the taxes or at least notify the landlord, who was a nonresident, that the taxes remained unpaid. We held that the general rule was applicable and that the tenant was estopped from acquiring title hostile to his landlord. In that case the equities were clearly in favor of the landlord and the application of the general rule and not the exception was proper. In so holding, Hebden v. Bina was not overruled.
We now come to a consideration of the proceedings which led up to the issuance of a tax deed to the county. On December 11, 1928, when the property was originally sold to Rolette County and a tax certificate issued, chapter 266, Sess.Laws N.D.1927 was in effect. This statute fixed the period of redemption at ninety days from the date of the notice of expiration and prescribed the manner of service. When the auditor of Rolette County issued the notice of expiration of redemption on January 3, 1940, chapter 235, Sess.Laws N.D.1939 was in effect. This statute provided, section 1, par. (3), that: "It shall be the duty of the county auditor on or before the first day of June of each year to give notice of the expiration of the period of redemption as to all tracts of real estate on which the period of redemption will expire on October 1st following." The statute also prescribes the form of notice and the manner of service. Those to whom the notice is addressed are advised that unless redemption is made before the first day of October after the date of the notice a tax deed will be issued to the county.
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