Fibelstad v. Grant County

• Decision Date: 31 July 1991
• Docket Number: No. 900383,900383
• Citation: 474 N.W.2d 54
• Parties: Percy O. FIBELSTAD, Petitioner and Appellant, v. GRANT COUNTY, a political subdivision of the State of North Dakota; and E.H. Schatz, as Auditor of Grant County, and individually, Respondents and Appellees, and Thomas Asbridge and Laura Asbridge, Defendants and Appellees, and The Farm Credit Bank of St. Paul, a body corporate, Intervenor and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 54

474 N.W.2d 54

Percy O. FIBELSTAD, Petitioner and Appellant, v. GRANT COUNTY, a political subdivision of the State of North Dakota; and E.H. Schatz, as Auditor of Grant County, and individually, Respondents and Appellees and Thomas Asbridge and Laura Asbridge, Defendants and Appellees and The Farm Credit Bank of St. Paul, a body corporate Intervenor and Appellee.

Civ. No. 900383.

Supreme Court of North Dakota.

July 31, 1991.

Wheeler Wolf, Bismarck, for petitioner and appellant; argued by James J. Coles. Appearance by Percy O. Fibelstad.

Fleck, Mather & Strutz, Bismarck, for respondents and appellees Grant County and E.H. Schatz, as Auditor of Grant County; argued by Charles S. Miller.

Disselhorst Law Office, Bismarck, for defendants and appellees Thomas Asbridge and Laura Asbridge; argued by Thomas M. Disselhorst.

Tschider & Smith, Bismarck, for intervenor and appellee Farm Credit Bank of St. Paul; argued by Sean O. Smith.

MESCHKE, Justice.

Percy O. Fibelstad appeals from a summary judgment denying his petition for a writ of mandamus to compel the Grant County auditor to issue tax sale certificates to him for a 6,330 acre ranch. The denial of the petition was based on the trial court's ruling that Grant County had not acquired title to the land because the 1984 tax sale was invalid. We remand for modification of the judgment.

In 1983 Laura and Thomas Asbridge mortgaged their ranch to Federal Land Bank of St. Paul, the predecessor to Farm Credit Bank of St. Paul. The Asbridges failed to pay the 1983 real estate taxes assessed against the ranch. On December 11, 1984, the County offered the land for sale for delinquent 1983 taxes. Prior to the sale, the county auditor did not publish the notice of tax sale directed by NDCC 57-24-07. Because no one bid on the land at the tax sale, the county treasurer bid in the amount of the delinquent taxes. NDCC 57-24-14. In these circumstances, pursuant to NDCC 57-24-23, the County is deemed to have obtained a tax sale certificate.

The Bank began foreclosure against the Asbridges in 1985. See Federal Land Bank of St. Paul v. Asbridge, 414 N.W.2d 596 (N.D.1987). On February 5, 1986, the Bank paid the County the amount due for the 1983 taxes, but in the meantime real estate taxes for later years had become delinquent. In these circumstances, the County is deemed to have received subsequent tax sale certificates for the amount of delinquent taxes accruing during those years, even though no additional tax sale is held. NDCC 57-24-25. So, in spite of the partial payment by the Bank in 1986, the County continued to hold tax sale certificates based on the 1984 sale.

In May 1989 the county auditor notified the Asbridges and the Bank of expiration of the period of redemption for the 1984 tax sale. The notices stated that the property would vest in the County unless redemption was made from the remaining tax sale certificates on or before October 1, 1989.

On September 18, 1989, Fibelstad went to the county treasurer's office and paid $11,531.46, the amount of the delinquency for 1984 taxes on the ranch, and was issued tax receipts. On September 29, 1989, Fibelstad paid the county treasurer $30,884.03, the amount of the delinquencies for tax years 1985, 1986, 1987, and the first half of 1988, and was again issued tax receipts. The Bank did not redeem.

On October 16, 1989, Fibelstad paid the county treasurer $3,392.60 for the remainder of the 1988 taxes on the property. At that time Fibelstad demanded that the auditor assign to him the tax sale certificates for the Asbridge ranch. The auditor refused. According to the treasurer, when Fibelstad made the September 1989 payments, he "indicated that he wanted to pay Tom Asbridge's taxes" and "never indicated he wished or intended to acquire the tax sale certificate[s]." Prior to October 1, 1989, the treasurer "advised" a Bank representative "that the 1984 taxes on the Asbridges' property had been paid and the property thus redeemed." According to the Bank, it relied on this conversation in not redeeming before October 1.

Fibelstad sued the County seeking a writ of mandamus to compel the county auditor to assign the tax sale certificates to him based on his payment of the taxes and on the failure of any interested party to redeem. The trial court converted the mandamus action into a declaratory judgment action to quiet title to the ranch. The Asbridges were joined as defendants and the Bank was allowed to intervene as a defendant.

The trial court granted the Bank's motion for summary judgment. Apparently assuming for purposes of its decision that Fibelstad had in fact purchased the tax sale certificates in September 1989, the court ruled that the county auditor's failure to publish notice of the December 1984 tax sale invalidated that sale and all subsequent tax proceedings affecting the ranch, and that the County, therefore, had no valid title to convey to Fibelstad. The trial court denied Fibelstad's petition for writ of mandamus and he appealed.

Summary judgment is proper when, after viewing the evidence in a light most favorable to the opposing party and giving that party the benefit of all favorable inferences, there is no genuine dispute as to either the material facts or the inferences to be drawn from undisputed facts. Heller v. Production Credit Association of Minot, 462 N.W.2d 125, 127 (N.D.1990). Even if factual disputes exist, summary judgment is appropriate when resolution of those factual disputes would not change the result. Matter of Estate of Hansen, 458 N.W.2d 264, 270 (N.D.1990). We conclude that resolution of the factual disputes in this case would not change the result.

I. STANDING

Fibelstad argues that the Bank has no standing to intervene in this case because it failed to prove that the Asbridges' mortgage had been legally transferred by the Federal Land Bank to the Farm Credit Bank. Fibelstad relies on NDCC 47-10-01, which says that "[a]n estate in real property ... can be transferred only by operation of law or by an instrument in writing, subscribed by the party disposing of the same or by his agent thereunto authorized by writing." Fibelstad claims that he "searched the real estate records as to all 41 parcels of the property which is the subject of this action" and "discovered no assignment or other conveyance of record transferring the mortgage interest" of the Federal Land Bank to the Farm Credit Bank. We reject Fibelstad's argument.

Section 410(a) of the Agricultural Credit Act of 1987, Pub.L. 100-233, codified at 12 U.S.C. Sec. 2011, et seq., required federal land banks and federal intermediate credit banks of each Farm Credit System district to merge into a Farm Credit Bank no later than July 6, 1988. This record shows that on May 17, 1988, Federal Land Bank of St. Paul and Federal Intermediate Credit Bank of St. Paul entered into an Agreement and Plan of Consolidation that was subsequently approved by the Farm Credit Administration. The pertinent clause of that agreement, Article I, Section 1.1(b), provides:

On the Effective Date, the separate existence of the Constituent Entities shall cease, and the F[arm] C[redit] B[ank] shall be established and shall ... succeed to and possess all the properties, rights, privileges, powers, franchises, immunities and purposes, and shall succeed and be subject to all the debts, liabilities, obligations, restrictions and duties, of the Constituent Entities, all without further act or deed.

Thus, "by operation of law" Farm Credit Bank is the successor in interest to the Federal Land Bank. This record also shows that a certified copy of the Charter of Farm Credit Bank has been recorded with the Grant County register of deeds, as well as with all other counties in the state. Farm Credit Bank has standing in this case.

II. VALIDITY OF TAX SALE

The statutory scheme governing the sale of real property for collection of delinquent taxes is comprehensive. There are provisions for notices of an impending tax sale to the owner, other interested parties, and the public through different, but interrelated, methods. The county treasurer is directed, during the first half of November of each year, to mail each owner of land subject to sale a notice giving the legal description and stating that the property will be sold unless the delinquent taxes, including penalties and interest, are paid prior to the sale on the second Tuesday in December. NDCC 57-24-01. The county auditor is also directed to prepare and to post "in a conspicuous place in his office" a list of all delinquent real estate taxes at least 20 days before the scheduled tax sale and "extra copies of the list of delinquent real estate taxes may be placed in banks and such other places as designated by the county commissioners." NDCC 57-24-02. The list of delinquent real estate taxes must contain the names of the owners of each tract, the description of each tract, and the total amount of taxes, penalties, interest, and other costs and expenses due on each tract. NDCC 57-24-03. In addition, NDCC 57-24-07 directs:

County auditor to give notice of tax sale by publication. The county auditor shall give notice of the delinquent real estate tax sale by publishing in the official newspaper of the county a notice, over his signature, published once each week for two successive weeks, the first publication to be made at least fourteen days prior to such sale. Each notice shall contain the information that all lands upon which taxes for the preceding year remain unpaid will be sold, and shall state the time and place of sale. The notice shall not contain the name of the owner of any lot or tract, nor the description thereof, but it shall state that a list of all lands subject to such sale is on file and may be examined at the office of the county auditor, and that a copy of such list with names of the owners and descriptions of the lands or tracts involved, and the total amount of taxes, penalties,...