Fisher v. Betts

• Citation: 96 N.W. 132,12 N.D. 197
• Decision Date: 03 July 1903
• Docket Number: 6731
• Court: United States State Supreme Court of North Dakota

96 N.W. 132

12 N.D. 197

C. E. FISHER v. N. N. BETTS AND O. P. SMITH

No. 6731

Supreme Court of North Dakota

July 3, 1903

Appeal from District Court, Cass county; Charles A. Pollock, J.

Action by C. E. Fisher against N. N. Betts and O. P. Smith. Judgment for defendants, and plaintiff appeals.

Affirmed.

J. E Robinson, for appellant.

Tax deeds are not prima facie evidence of title, and defendant offered no other evidence. There was no evidence to show levy of tax, notice of sale, or of expiration of period of redemption. There is no statute making tax deeds evidence of title, or regularity proceedings. There was no statute prescribing form of tax deed, or making it evidence, for tax sales of 1890. Whatever effect section 7, chapter 100, Laws of 1891, had, was destroyed by its repeal by Rev. Codes of 1896. Without impairing the obligation of contract, laws changing rules of evidence may be modified as the legislature sees fit. Cooley on Cons. Lim. 347, 349, 450, 451; Hickox v. Tillman, 38 Barb. 608; Howard v. Moot, 64 N.Y. 262; Strode v. Washer, (Or.) 16 P. 926; Karnley v. Paisley, 13 Iowa 89; Kendall v Kingston, 5 Mass. 524; Ogden v. Saunders, 12 Wheat. 213, 349, 6 L.Ed. 606; Fales v. Wadsworth, 23 Me. 553; Commonwealth v. Williams, 6 Gray 1; Pratt v Jones, 25 Vt. 303. After the repeal of statute making tax deed evidence of title, introduction of deed, without proof of preliminary steps, vesting the power of sale, does not show prima facie title. Emerick et al. v. Alvarado et al., 27 P. 357; Hickox v. Tillman, 38 Barb 608. Purchaser at tax sale at common law must prove taxes were duly assessed, the successive steps leading to a lawful sale, at which he, or some one under whom he claims, became the purchaser. Cooley on Taxation (2d Ed.) 473 and cases cited. A statute declaring a tax deed evidence of regularity of all proceedings leading up to it, does not render it evidence of compliance with an act requiring a redemption notice. Herrick v. Niesz et ux. 47 P. 414; Miller v. Miller, 31 P. 247, 98 Cal. 376; Reed v. Lyon, 31 P. 619, 96 Cal. 501; Halbrook v Fellows, 38 Ill. 440; Wilson v. McKenna, 52 Ill. 43; William v. Underhill, 58 Ill. 137; Jewell v. Truhn, 38 Minn. 433, 38 N.W. 106; Muller v. Jackson, 39 Minn. 431, 40 N.W. 565. That county commissioners held a session of the board of equalization in July, 1889, was essential to the validity of a tax. Comp. Laws 1584; Powers v. Larabee, 2 N.D. 141, 49 N.W. 724. The tax sale for the year 1889 was void, because county commissioners failed to attach their warrant to tax list, requiring treasurer to collect. Cooley on Taxation, 424, 481. Blackwell on Tax Titles, chapter 7.

The testimony of Mr. Robinson to the effect that he had examined tax list of 1889, Cass county, and that no warrant under the hand and seal of county commissioners was attached, was competent. Greenleaf on Evidence, section 93. A public document may be proven by a witness who has taken a copy of it. Thayer on Evidence, 490. The law does not require plenary evidence to prove a negative fact. 2 Blackwell, 846.

There was no legal designation of a newspaper for the publication of the delinquent tax list of 1889, 1891, and 1892, Laws of 1890, 68; Cass County v. Certain Lands of Security Improvement Co., 7 N.D. 528, 75 N.W. 774. Sales and deeds for 1891 and 1892 are void, as state taxes were levied by percentages and not in specific amounts. Wells County v. McHenry et al., 7 N.D. 246, 261, 74 N.W. 241; Dever v. Cornwell, 10 N.D. 123, 86 N.W. 229; A sale which is void by reason of a failure to levy a tax, cannot be validated by subsequent legislation. Dever v. Cornwell, supra; Wells County v. McHenry, supra. A statute of limitation does not cure defects in assessor's affidavit. Lee v. Crawford, 10 N.D. 482, 88 N.W. 97; Cooley on Taxation, 555 (2d Ed.) Cooley's Con. Lim. 447, 449; Groesbeck v. Seeley, 13 Mich. 329, 342; Baker v. Kelly, 11 Minn. 480, 593, 499; Conway v. Cable, 37 Ill. 82; Waln v. Shearman, 8 Sar. & Raw. (Pa.) 357; Kipp v. Johnson, 31 Minn. 360; Farrar v. Clark, 85 Ind. 449; Gabe v. Root, 98 Ind. 256; Case v. Dean, 16 Mich. 12; Quinlan v. Rogers, 12 Mich. 168. A tax sale is void when made for any sum in excess of legal taxes and charges. Baker v. Supervisors of Columbia County, 39 Wis. 444; Milledge v. Coleman, 47 Wis. 184, 2 N.W. 77; Kimball v. Ballard, 19 Wis. 601; Barden v. Supervisors of Columbia County, 33 Wis. 445; Harper v. Rowe, 53 Cal. 233; Treadwell v. Patterson, 51 Cal. 637; Case v. Dean, 16 Mich. 12, 32, 33; Riverside v. Howell, 113 Ill. 259; Gage v. Plumpelly et al., 115 U.S. 454, 463, 29 L.Ed. 449; Cooley on Taxation (2d Ed.) 497. In each year the city levies were void, not being based on an estimate of expenses, or on a valid appropriation ordinance. Shattuck et al. v. Smith, 6 N.D. 56, 69 N.W. 5. As defendant had no lien, he acquired no right by the payment of subsequent taxes. McHenry v. Brett, 9 N.D. 68, 81 N.W. 65.

Morrill & Engerud, for the respondent.

A tax sale creates a contract between the state and the purchaser at such sale, and its terms are found in the statute governing the sale. Roberts v. First National Bank of Fargo, 8 N.D. 504, 79 N.W. 1048. Hence it follows, that a purchaser at 1890 sale was, by statute under which he bought, entitled to a deed, and a legal obligation rested upon the state to provide for its execution and form. This obligation the state fulfilled by the enactment of chapter 100, Laws of 1891. Section 7 of such act provides such a deed, and its legal effect, which became, by relation, a part of its original contract of sale as to purchasers in 1890, and was a part of the contract under which they bought at sales of 1891 to 1895 inclusive. Such deed evidenced the contract between the state and the tax purchaser and was guaranteed by the state to evidence, prima facie, the regularity of all proceedings requisite to its issuance. Such contract the legislature had no right or power to impair. Constitution of the U.S. article 1, section 10. Constitution of North Dakota, article 1, section 16; Roberts v. First National Bank of Fargo et al. supra; Smith v. Cleveland, 17 Wis. 556; Marx v. Hawthorne, 30 F. 579; Tracy v. Reed, 38 F. 59; Hart v. Ross, 64 Ala. 96. Contra, Hickox v. Tillman, 38 Barb. 608; Strode v. Washer, 16 P. 926. The latter overruled in Tracy v. Reed, 38 F. supra.

The legislature could not deprive the tax purchaser of his deed by repealing the law, without substituting some provision for a deed to him. The revisers of the code intended to repeal the old revenue law only as to sales made after its adoption. The same rule of construction applies as in construing the repealing clause of the Rev. Codes relating to assessors. State ex rel. Scovill v. Morehouse, 5 N.D. 406, 67 N.W. 140. The tax deeds were, therefore, competent evidence of the regularity of all proceedings up to their execution, because all issued under section 7, chapter 100, Laws of 1891, which was never repealed so far as it relates to sales made prior to 1896.

Under the revenue law of 1890 and 1897, the county auditor gives the notice of the expiration of redemption. This act of giving such notice is, therefore, official; and the giving thereof a step in the proceedings preceding the execution of the deed, of which act the deed is evidence. Garmoe v. Sturgeon, 21 N.W. 493; Reed v. Thompson, 9 N.W. 331; Wilson v. Crafts, 9 N.W. 333; Fuller v. Armstrong et al., 6 N.W. 61; Young v. Goodhue, 76 N.W. 822.

Appellant introduced a certified copy of the tax levies for the city of Fargo, and proceedings of the city council relating thereto. These are immaterial, in that they do not relate to taxes upon which respondent's tax deeds are based. Such proof is also incompetent. The auditor's certificates fail to show that the transcript is a true and complete transcript of all the minutes under any given date, or on any given page. The auditor certifies that, what he has seen fit to transcribe, is a true and correct transcript from the records. The auditor cannot substitute his judgment for that of the court, as to what is pertinent to any given subject. Wood v. Knapp, 2 N.E. 632. Mr. Robinson undertook to prove, by his own testimony, what the record of the county auditor's office failed to show. He was not the custodian of the records. It is not claimed that it was necessary to offer the records. But if an examination is to be made, and the result stated, it must be under proper instructions. The rule is well established. State v. Cadwell, 44 N.W 700. Whatever force there may be in the several objections to the validity of the tax sales in dispute, they are barred by the statute of limitation. Section 1269, Rev. Codes of 1895, barred any action to attack a tax deed three years from its record, and applies to both past and future deeds. That law was repealed by chapter 126, Laws of 1897, which substituted section 79 of that chapter for it, and thereby the limitation as to past deeds was fixed at three years after the passage and approval of the act, towit: March 7, 1897. The bar of the statute was complete March 8, 1900. Such acts are constitutional. Meldahl v. Dobbin et al., 8 N.D. 115, 77 N.W. 280; Roberts v. First Nat'l Bank of Fargo et al., 8 N.D. 504, 79 N.W. 1049; Black on Tax Titles, section 492. They take effect on existing causes of action. Black on Tax Titles, section 500; Merchants' Nat'l Bank of Bismarck v. Braithwaite, 7 N.D. 358, 75 N.W. 244; Osborne v. Lindstrom, 9 N.D. 1, 81 N.W. 72. Short periods of limitation are very common relating to judicial sales by administrators and guardians. In such cases it is uniformly held, that such limitations cure all irregularities except as to jurisdiction to act generally. 11 Am. & Eng. Enc. of Law (2d Ed.) 1130; Streeter v. Wilkinson, 24 Minn....