Fish v. France

• Decision Date: 09 January 1942
• Docket Number: 6772.
• Citation: 2 N.W.2d 537,71 N.D. 499
• Court: North Dakota Supreme Court

2 N.W.2d 537

71 N.D. 499

FISH et al. v. FRANCE et al.

No. 6772.

Supreme Court of North Dakota

January 9, 1942

Rehearing Denied Feb. 27, 1942.

Syllabus by the Court.

1. Proceedings under the provisions of chapter 225 of the Session Laws of 1939 are not available to one seeking reduction in assessment and taxation of real estate for years prior to the enactment of the statute. Murray v Mutschelknaus, 70 N.D. 1, 291 N.W. 118 followed.

2. A delinquent taxpayer may not set up as a defense to proceedings to enforce the payment of taxes that the authorities have failed to take steps to collect taxes from other delinquent taxpayers.

3. The fact that a delinquent taxpayer has failed to take steps to have alleged unjustly excessive taxes abated by the county commissioners under the provisions of chapter 276 of the Session Laws of 1931 does not bar an action to have tax deeds cancelled, as the remedy provided by said chapter 276 is not exclusive.

4. Under the provisions of section 2193 of the Compiled Laws, a certificate of tax sale is prima facie evidence that all the requirements of law with respect to the sale have been duly complied with; and unless the defects relied upon are specified in the statute or are beyond the power of the legislature to remedy, they may not be asserted after the certificate has been issued. Anderson v. Roberts N.D., 1 N.W.2d 338, followed.

5. Where a delinquent taxpayer commences an action, seeking to have taxes cancelled, and tax certificates set aside, he should do equity by tendering the amount of taxes justly chargeable against the real estate involved.

6. Where land has been sold to the county at a tax sale because of failure to pay the taxes levied for the year 1934, and the county auditor proceeds to give notice of the expiration of the time of redemption, he is required to set forth in the notice the amount necessary to be paid in order to redeem from said tax sale; and in this amount he will include the amount for which the land was sold with penalty and interest together with the amount of all subsequent taxes due and payable on said land subsequent to the sale, with penalty and interest; and where the county auditor, in addition to said amounts, includes alleged delinquent taxes which accrued prior to the year 1934, together with penalty and interest thereon, and the amount of all taxes is set forth in one sum so that the delinquent taxpayer is not able to determine therefrom the correct amount necessary to redeem, the notice of expiration of time for redemption is insufficient to support the issuance of a tax deed.

7. The evidence is examined, and it is held: that the certificates of sale of the real estate for the 1934 taxes are valid, and in order to redeem from said tax sale, plaintiffs must pay the amount for which said land was sold at the tax sale of 1935, with penalty and interest, together with all subsequent taxes with penalty and interest, upon proper notice of the expiration of the time of redemption; but the plaintiffs seeking equity must first do equity; and the tax deeds issued being at least a cloud upon the title, and the plaintiffs seeking to have the cloud removed, the court will not proceed to the determination of the issues raised thereunder until plaintiffs tender the amount of taxes found to be due.

Pearce & Stephan, of Valley City, and A. R. Bergesen, of Fargo, for plaintiffs-respondents.

August Doerr, State's Atty., of Napoleon, and C. F. Kelsch, Asst. Atty Gen., for defendants-appellants.

BURR, Chief Justice.

Plaintiffs seek to enjoin the defendants from issuing tax deeds to some sixty pieces of farm lands situated in Logan County, containing over 18,000 acres, and in their complaint allege the county sold said land for taxes; the county auditor is about to issue tax deeds to the county because of the alleged failure to pay taxes for the years 1930, 1931, 1935, 1937, and 1938; no valid levy of taxes was made by the board of county commissioners for the fiscal year beginning July, 1930; the sales based upon the taxes for the year 1931 are illegal and void because no sufficient levy was made; the actual amount of tax spread upon the records against the land that year was 1.4 mills in excess of the legal limit; the tax levy for the year 1935 was illegally excessive by reason of being .6 of a mill in excess of the legal limit; the total amount of tax levy for the year 1937 was illegal in being .66 mill in excess of the legal limit prescribed by law; and the tax levy for the year 1938 was 9.29 mills in excess of the total levy limited by law.

Further, they allege "That all of the tax sales held in Logan County, North Dakota, purporting to sell the real estate hereinbefore described for the non-payment of taxes for the years 1930, 1931, 1935, 1937, and 1938, are illegal, void and of no effect by reason of the facts aforesaid, and because the amounts alleged to be due against said lands and the amounts for which said tax certificates were issued, were illegally excessive and more than an amount allowed by law.

"That all of the alleged tax sales of the real estate hereinbefore described held for the sale of said lands for the real estate taxes for 1930 to 1938 both inclusive, were illegal and are void and of no effect for the reason that no proper, legal or valid notice of tax sale was issued or served as prescribed by law."

They further allege that the notices of expiration of the period of redemption "were not issued or served in the time or in the manner provided by law"; that in issuing the notices of expiration, the defendants illegally discriminated against the plaintiffs by issuing notices of expiration of the period of redemption as to the plaintiffs, and in refraining from so proceeding against many other lands in the county; "That the assessed valuations placed upon the lands *** for the years 1930 to 1939 inclusive, are far in excess of the actual and true value of said lands and are arbitrary, discriminatory and confiscatory"; that they filed with the board a petition asking for abatement and reduction of taxes, and the board has failed to take any action thereon.

The plaintiffs, therefore, ask that the taxes levied for the years 1930 and 1931 be declared void, the pretended levy vacated and cancelled, and all subsequent proceedings based on said taxes be declared void; that such portion of the taxes for the years 1931, 1935, 1937, and 1938 which are in excess of the legal limit of 8 mills for county purposes be declared void and cancelled, and that all sales heretofore had or held because of the nonpayment of the taxes be declared void; that the amount of the taxes for the years 1930 to 1939, both inclusive, "be reduced to a figure commensurate with the actual and true value in money of the lands hereinbefore described, and that the assessments now of record be corrected in accordance therewith"; that all notices of the expiration of the period of redemption for the years 1930 and subsequent years be declared void, be vacated and cancelled; and the defendants be restrained from issuing tax deeds, from taking possession of the land, and from taking tax deeds based upon any of the proceedings hereinbefore stated.

To this complaint the defendants demurred on the grounds:

"1. That the Court has no jurisdiction of the subject of the action.

"2. That the complaint does not state facts sufficient to constitute a cause of action."

This demurrer was overruled temporarily, and the defendants answered, setting forth that any cause or right of action which the plaintiffs had for the abatement of any tax charges based upon excessive valuations for the year 1938 and all prior years is barred by the statute of limitations, as set forth in chapter 276 of the Session Laws of 1931; that any cause of action that plaintiffs may have for the abatement in part of tax charges for the year 1938 and prior years has been barred by the sale of the lands for delinquent taxes; that the plaintiffs have not offered to do equity, and have failed to offer to pay or tender payment of any just taxes which have been levied and that were due and payable at the time of the commencement of the action; that "the attack made by the plaintiffs, upon the valuations of all of the real property described in the complaint is a collateral attack upon the assessment of such real property as the same were equalized by the County Board of Equalization, and the State Board of Equalization. That the State Board of Equalization is a constitutional board and that its determination is not subject to a collateral attack, save and except where such board exceeds its jurisdiction and acted fraudulently, and that there is no allegation in the complaint that the State Board did exceed its jurisdiction or act fraudulently in equalizing the assessments of real property in Logan County, including the lands described in the complaint."

The case came on for trial, and at that time the parties stipulated as follows:

"At this time, for the purpose of the record and to simplify the issues by process of elimination, it is stipulated by and between the parties and their respective attorneys of record as follows:

"First With reference to the assessment, that the plaintiffs do not challenge the validity of any of the assessments made for the years 1930 to 1939 relative to all of the property involved in the complaint; that by the term assessment as used in this stipulation, we mean the fixation of the value of the property for the purpose of taxation; that the validity of the assessments is not challenged in this action, and that by the elimination whereof from this action the plaintiffs do not waive their right to challenge if they so determine the assessments hereafter. The point being...