Elms v. Olson

• Decision Date: 07 February 1957
• Docket Number: No. 7662,7662
• Parties: Gladys D. ELMS, Plaintiff and Appellant, v. Willard OLSON, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 117

81 N.W.2d 117

Gladys D. ELMS, Plaintiff and Appellant, v. Willard OLSON, Defendant and Respondent.

No. 7662.

Supreme Court of North Dakota.

Feb. 7, 1957.

As Amended Feb. 12, 1957.

Syllabus by the Court.

A notice of expiration of the period of redemption in conformity with requirements of the statutes in existence at the time of issuance is valid, and a county acquiring tax title pursuant thereto obtains a valid title.

Duffy & Haugland, Devils Lake, for plaintiff and appellant.

Walter O. Burk, Williston, for defendant and respondent.

JOHNSON, Judge.

This is a statutory action to quiet title covering the South Half of the Northeast Quarter (S 1/2 NE 1/4) and Lots 1 and 2, Section 5, Township 155 North of Range 96 West, Williams County, North Dakota. The plaintiff claims title as the former owner. The defendant claims title as purchaser from Williams County, North Dakota. The county acquired the property under tax deed proceedings. The defendant by way of counterclaim asserts that he is the owner of the property and pleads the 10 and 20 year statutes of limitations as a bar to the plaintiff's action.

The only challenge to the defendant's title is based upon the contention that the notice of expiration of the period of redemption is invalid, in that it included 1926, 1927 and 1928 taxes levied subsequent to the sale of the 1925 taxes; that there were, therefore, included in the notice of expiration of the period of redemption taxes which were delinquent less than three years. The notice of expiration of the period of redemption was issued by the county auditor of Williams County, on January 15, 1930 It describes the property involved as follows:

                'Subdivision     Sec. or     Twp. or     Range   Years      Amt.  Required To
                                   Lot        Block               Tax            Redeem
                S NE, Lots 12      5          155        96                    319.57'
                and then states
                

'* * * Tax Sale held in said County on the 14 day of December 1926, offered for Sale for Delinquent Taxes against it and was sold to said County, and that there are due and unpaid Taxes, penalty and Interest and costs upon and against said Real Estate at the date of this notice the sum of Three hundred-nineteen and 57/100 Dollars including subsequent Taxes for the years 1925, 1926, 1927, 1928, 19__, and Penalty and Interest thereon, and that redemption has not been made therefrom, * * *.'

The trial court found for the defendant upholding the validity of the defendant's title. The plaintiff appeals and requests a trial de novo.

The issue before us is whether the inclusion of taxes which were delinquent less than 3 years invalidated the notice of expiration of the period of redemption. That depends upon whether the law in force governing tax sale procedure permitted the county to include in the notice of expiration of the period of redemption, not only the original tax for which the property was sold, but also all subsequent taxes then due and delinquent. It is apparent that the procedure taken for the acquisition of this property by Williams County was conducted under the statutes as they existed prior to enactment of chapter 298, 1931 S.L. The trial court stated that the tax title proceedings were in compliance 'with the statutes as they existed at the time they were conducted and that no defect therein has been established.' This conclusion is based on statements made in the case of Kelsch v. Miller, 73 N.D. 405, 15 N.W.2d 433, 438, 155 A.L.R. 1186. In that case it is stated:

'The effect of the legislative enactments of 1931, Laws 1931, chap. 298, and 1939, Laws 1939, chap. 235, was to eliminate the requirement, Laws 1925, chap. 199, that in order to make redemption from a tax sale certificate the redemptioner must pay the amount of subsequent taxes, penalties and interest without regard to the date when such taxes were paid or became due. Under these enactments, the redemptioner could be required to pay only the amount due upon a tax sale that had been had and upon a certificate that had been issued three or more years before the notice of expiration of the period of redemption was issued, and he could not be required to pay as part of the amount necessary for redemption any subsequent taxes that had accrued, or the amount of a tax sale certificate issued less than three years prior to the date of the notice of expiration of the period of redemption.'

It is contended that this statement is dicta; that the opinion overlooks certain statutory provisions; and that the opinion sanctions statements of the amount due by years and not by lump sum. It also asserted that under present law, the tax title would be defective. Grandin v. Gardiner, N.D., 63 N.W.2d 128; Wilson v. Divide County, N.D., 76 N.W.2d 896. That is true but the cases cited arise under different statutes.

We need not concern ourselves with whether the quoted statement from Kelsch v. Miller, supra, is dicta. The discussion relates to the historical development of the statutes. An examination of the statutes bears out the conclusion reached. Section 4, Chapter 199, 1925 Session Laws, amending section 2197 of the 1913 Compiled Laws says...