Galbraith v. Paine

• Citation: 96 N.W. 258,12 N.D. 164
• Decision Date: 01 July 1903
• Docket Number: 6731
• Court: United States State Supreme Court of North Dakota

96 N.W. 258

12 N.D. 164

JOHN P. GALBRAITH v. J. A. PAYNE

No. 6731

Supreme Court of North Dakota

July 1, 1903

Appeal from District Court, Nelson County; Fisk, J.

Action by John P. Galbraith against J. A. Payne and others. Judgment for plaintiff, and defendant Payne appeals.

Reversed.

Judgment vacated, and judgment entered dismissing this action.

Newman Spalding & Stambaugh, for appellant.

Plaintiff must recover under his deed from St. Paul Harvester Company. Dever v. Cornwall, 10 N.D. 123, 86 N.W. 227. His deed is void as to the defendant, under section 7002 Rev. Codes. The statute applies to all titles whether good or bad. 1 Russell on Crimes 180; 2 Bishop on Criminal Law section 136; Tomb v. Sherwood, 13 Johnson 291; Bacon's Abrs. Maintenance E.; Teel v. Fonda, 7 Johnson (N.Y.) 251. The seller is presumed to have knowledge of the condition of the title. Hassenbrat v. Kelly, 13 Johns. (N.Y.) 466. The transaction is contrary to express law, and therefore unlawful. Section 3920, Rev. Codes. As against a person holding adversely the deed is a mere nullity. Livingston v. Proseus, 2 Hill 529. This action is barred by the statute of limitation. Chap. 126, Laws of 1897, section 79. The statute runs against all defects whatever their nature. Saranac L. & T. Co. v. Roberts, 177 U.S. 328. Similar statutes barring inquiry into all questions except the taxability of the land, the non-payment of the taxes, and the redemption of the land, have frequently been held valid and curative of the defects in the assessment. Geekie v. Kirby Carpenter Co., 106 U.S. 379, 27 L.Ed. 157; Terry v. Anderson, 95 U.S. 628, 24 L.Ed. 365; Williams v. Supervisors, 122 U.S. 163, 30 L.Ed. 1090; in re Brown, 135 U.S. 701, 34 L.Ed. 316; Bronson v. St. Croix Lbr. Co. 44 Minn. 348, 46 N.W. 570; Coulter v. Stafford, 48 F. 266; Imp. Co. v. Bardon, 45 F. 706; Ensign v. Barse, 107 N.Y. 329; Ostrander v. Darling, 127 N.Y. 70; Allen v. Armstrong, 16 Iowa 508; Freeman v. Thayer, 33 Me. 83; Smith v. Cleveland, 17 Wis. 563; Pillow v. Roberts, 13 How. 472, 14 L.Ed. 228. The defects found are no ground for setting aside the sales under section 72, chapter 132 of Laws of 1890, or section 78, chapter 126, Laws of 1897, such defects being by those statutes rendered immaterial after sale. The defects found in the levies of state taxes of 1890, 1891, 1892, 1894, 1895, 1897, and 1898 by percentages are within the power of the legislature prior to the sale. Shattuck et al. v. Smith et al., 10 N.D. 56, 69 N.W. 5; Dever v. Cornwall, 10 N.D. 123, 86 N.W. 277. Such power may be exercised in its discretion by retroactive, curative act, and by statute of limitations contained in the act providing for the levy, or passed afterwards, or by any other provision clearly showing the intention to render the requirement directory. Cooley on Con. Lim. (6 Ed.) 457; Ensign et al. v. Barse et al., 107 N.Y. 337, 15 N.E. 401; Wells Co. v. McHenry, 7 N.D. 256, 74 N.W. 241; Saranac Land & Trust Co. v. Roberts, 177 U.S. 330, 44 L.Ed. 792; Terry v. Anderson, 95 U.S. 628, 24 L.Ed. 365; People v. Turner, 145 N.Y. 451, 40 N.E. 400. A departure from the strict letter of the statute, cannot be said to be a jurisdictional defect in a constitutional sense, and the legislature may validate acts which it might originally have authorized, and limit the time within which actions to set aside tax sales based on irregularities may be commenced. Ensign v. Barse, supra; People v. Turner, supra. Under the provisions in question all inquiry is foreclosed, as to other facts, and the state guarantees the purchaser that his purchase shall not be assailed, except for one of the reasons stated. Dunda v. Harlan, 25 P. 883 (Kan.); Martin v. Garrett, 30 P. 168 (Kan.); Hiles v. LaFlesh, 18 N.W. 435 (Wis.); Oconto v. Jerraud, 50 N.W. 591 (Wis.); Sherry v. Gilman, 17 N.W. 252 (Wis.)

C. J. Murphy, for the respondent.

Statutes of limitations cannot apply to cases where the assessment, or some other vital step was defective. Roberts v. Bank, 8 N.D. 474, 79 N.W. 993; Sweigle v. Gates, 9 N.D. 538, 84 N.W. 481; Powers v. Kitching, 10 N.D. 254, 86 N.W. 737.

Defendant is entitled to relief. Tax certificates prove nothing outside of the regularity of the proceedings pertaining to the sale. Sanborn v. Cooper, 17 N.W. 856; Smith v. Ryan, 11 S.W. 647, DeTreville v. Smalls, 98 U.S. 521, 25 L.Ed. 174; 2 Desty on Taxation. There is no evidence to show assessment and levy of tax upon which the sales set forth in the certificate were made. Tax certificates offered no proof of these. Tax certificates for 1891, 1892, and 1895 are involved, 1st, because the assessment was defective for each of these years; 2d, because the state levies for those years were made by percentages and not in specific amounts. The assessment for 1891 and 1890 was bad, as the land is described therein "S.W. 4-10" and did not contain township and range. Powers v. Bowdel, 3 N.D. 107, 54 N.W. 404; Sheets v. Paine, 10 N.D. 103, 86 N.W. 118.

If the title conveyed is a real, not a pretended title, that is no violation of section 7002, Rev Codes. Courts have for years found and still find ways of evading this statute. 48 Warvelle on Vendors, 33; 4 Kent. Com. 477. Where such conveyances are discouraged they have been held to be good against the grantors and all others except the adverse possessor. 1 Warvelle on Vendors 34; University v. Joslyn, 21 Vt. 52; Abernathy v. Boazman, 24 Ala. 189; Hamilton v. Wright, 37 N.Y. 502. The grantee may recover possession to his own use in the name of the grantor. 1 Warvelle on Vendors 34, and cases cited; Maupin on Marketable Title to Real Estate, section 212; Farnum v. Peterson, 111 Mass. 148, and cases cited. But this principle does not exist in this state. The old common law rule was expressly adopted. But there has been an express repeal of this obsolete rule by the action of the revisors of the codes, who have dropped sections 3303 and 4870 of Compiled Laws, as far as it provided for an action in the name of the grantor. The rule in this state is propounded in Kreuger v. Schultz, 6 N.D. 301, 70 N.W. 269. That courts look with disfavor upon this law see Crary v. Goodman, 22 N.Y. 177; Higanbotham v. Stoddard, 72 N.Y. 94.

OPINION

YOUNG, C. J.

This is an action to determine adverse claims to 160 acres of land situated in Nelson county, and to recover possession. The plaintiff deraigns his title as follows: (1) A patent from the United States government to Frank A. Willson, dated March 26, 1886; (2) a quitclaim deed from said Frank A. Willson to the St. Paul Harvester Company, a corporation, executed and delivered on May 8, 1900; (3) a quitclaim deed from the St. Paul Harvester Company to the plaintiff, dated April 25, 1901. All of said deeds were recorded at or about the time of their execution. The defendant Paine claims title under two tax deeds executed by the county auditor of Nelson county--one in 1894, upon a sale of the premises for the tax of 1889; the other executed in 1895 upon a sale for the tax of 1890. He also claims liens under six tax certificates issued upon tax sales for the taxes of 1891, 1892, 1895, 1896, 1897, and 1898, and also for taxes paid for the years 1893, 1894, 1899, and 1900. Paine took possession of the premises on May 7, 1898, and leased the same to the defendant Turcotte upon shares. His possession has continued since, and during the years 1898, 1899, and 1900 he received the rents from his tenant, and at all times held possession and claimed title to said premises under his tax deeds. The trial court found that the plaintiff was the owner of the premises, and entitled to possession thereof; that both of defendant Paine's tax deeds were void; that all of his tax certificates were void, except the one issued in 1897 upon the tax of 1896; and, further, that the taxes paid by the defendant were voluntarily paid, and do not constitute liens. Judgment was entered canceling and discharging of record all claims and demands of the defendant Paine by virtue of his tax deeds, tax certificates, and payment of taxes, except as to the tax certificate for the tax of 1896, and awarding possession of the premises to the plaintiff. The defendant Paine appeals from the judgment and asks a review under section 5630, Rev. Codes.

The case involves no disputed facts. The first question presented relates to plaintiff's title. Counsel for appellant contend that plaintiff has failed to establish his title. Their contention is that Willson's deed to the St. Paul Harvester Company and the latter's deed to the plaintiff are void as to the defendant, and that, plaintiff having failed to establish his title and right of possession in the premises, the action should, therefore, be dismissed. This contention must be sustained. It is agreed that neither Willson nor the St. Paul Harvester Company were in possession of the premises, or took the rents and profits thereof during the year preceding the execution of their deeds. In fact, the St. Paul Harvester Company, the plaintiff's grantor, never was in possession. On the other hand, the defendant Paine was in possession three years before the deed to plaintiff was executed and two years before the Willson deed was executed, claiming title under his tax deeds. Further, he received the rents and profits of the premises during all of that period. Upon this state of facts, under the law of this state, both deeds must be held void as to the defendant. The common-law doctrine, which condemns as void conveyances of real estate when title is in suit, or when the vendor has not been in possession or taken rents for the space of a year prior to the conveyance, as acts of champerty and maintenance, has not been abolished in this state, but, on the contrary, is perpetuated by express statute. Section...