Grandin v. Gardiner

• Decision Date: 23 February 1954
• Docket Number: No. 7413,7413
• Parties: GRANDIN v. GARDINER et al.
• Court: North Dakota Supreme Court

Page 128

63 N.W.2d 128

GRANDIN v. GARDINER et al.

No. 7413.

Supreme Court of North Dakota.

Feb. 23, 1954.

Syllabus by the Court.

1. Where real estate was sold to the county at tax sale on December 8, 1931, for 1930 taxes and on January 31, 1938, the county auditor issued a notice of expiration of period of redemption giving notice that unless redemption was made within ninety days from the date of the notice which gave as the total amount necessary to redeem a lump sum which included taxes for the years 1927, 1928, and 1929, being delinquent taxes that had accrued prior to 1930, and which lump sum also included taxes for the year 1936 which had become delinquent less than three years prior to the date of the notice, the notice of expiration of period of redemption was void and the tax deed issued pursuant thereto is also void.

2. A tax deed to a county issued in the name of the county auditor rather than in the name of the state is void on its face.

3. A tax deed issued by the county auditor, although void on its face, is sufficient to confer on the grantee color of title which will support actual adverse possession under the provisions of Section 47-0603, NDRC 1943, as amended by Chapter 276, SLND 1951.

4. Actual open adverse and undisputed possession of land for a period of ten years is indispensable to the acquisition of title under Section 47-0603, NDRC 1943, as amended by Chapter 276, SLND 1951.

5. Unimproved and unoccupied land is presumed to be in the possession of the holder of the legal title and not in the holder of the title under a void tax deed.

6. A claim of possession cannot be based upon void tax deed proceedings alone.

7. Under the evidence presented in this case it is held that Mountrail County acquired a bare color of title under a void tax deed and never actually took possession of the property which the plaintiff now claims under adverse possession and that adverse possession as against the original owner has not continued for a period of ten years.

8. Laches does not arise from delay or lapse of time alone. A party against whom laches is sought to be invoked must be actually or presumptively aware of his rights and fail to assert them against a party who has in good faith permitted his position to become so changed that he cannot be restored to his former state.

9. Presumption of the law is against and not in favor of an adverse possession.

10. Mere color of title evidenced by a void tax deed will not start the period of ten years prescribed by our residuary statute of limitations (Section 28-0122, NDRC 1943) to run against the original owner while he had both valid title and possession.

Q. R. Schulte, Stanley, for plaintiff and respondent.

Zuger & Zuger and C. L. Foster, Bismarck, for defendants and appellants.

MORRIS, Chief Justice.

This is a statutory action to determine adverse claims involving 120 acres of land in Mountrial County which was originally conveyed by United States patent to Laurits Mandrup Jensen on June 19, 1925, and described as the N 1/2 SW 1/4 and the SW 1/4 NW 1/4 of Section 34, Township 157, Range 94. On February 18, 1937, the defendant Jensen conveyed to the defendant John W. Smith all the oil, gas, and other minerals in and under the land in question and on October 27, 1931, granted an easement for a gas pipe line to the Montana-Dakota Power Company. Jensen paid taxes on the land for the year 1926 but paid no taxes thereafter.

The land was sold for taxes and bid in by Mountrail County for the years 1927 to 1936 inclusive. On January 31, 1938, the county auditor of Mountrail County issued a notice of expiration of redemption giving notice that the real estate was, at the tax sale held on December 8, 1931, sold to the county and no redemption made from the sale and that unless a redemption be made within ninety days from the date of the notice tax deed would be issued to the county. The description of the land and the amount required to redeem are set forth in the notice as follows:

                'Subdivision  Sec. or Lot  Town or Block  Range  Total Amount Necessary To
                                                                   Redeem
                -------------------------------------------------------------------------------
                NSW, SWNW     34           157            94     414.96.'
                

A tax deed executed in the name of and by the county auditor was issued to Mountrail County on May 23, 1938. On June 28, 1945, Mountrail County executed a tax deed to the defendant Fred Grandin for the sum of $120. On the same date that the deed was issued, a notice was also issued to Laurits Mandrup Jensen, White Earth, North Dakota, advising of the sale to Fred Grandin and notifying Jensen that the sale would become final at the expiration of thirty days unless redemption was made by paying $120. This notice was not delivered but was returned by the post office. After the expiration of thirty days the deed was delivered to Grandin, who, on February 16, 1949, deeded the property to his wife Caroline Grandin, the present plaintiff. The plaintiff later gave an oil and gas lease and two mineral deeds affecting this land but they are not important in this case.

The defendant Jensen has answered, denying the allegations of the complaint and setting forth his claim as owner of the land subject to his deed of the minerals to the defendant Smith and by way of counterclaim asks that title to the property be quieted in him, save and except as to the rights of Smith. Smith answers setting up the title of Jensen and his conveyance of the minerals to Smith and asks that the title to the minerals be quieted in the defendant Smith. The plaintiff replied to these answers setting up statutes of limitation and laches. Jensen and Smith appeal from a judgment in favor of the plaintiff.

The plaintiff's title, in so far as it is of record in the office of the register of deeds of Mountrail County, derives from the tax deed issued to Mountrail County on May 23, 1938, and the tax deed given by Mountrail County to plaintiff's husband, Fred Grandin, on June 28, 1945. There is first placed in issue the validity of the tax deed proceedings. The appellants contend that the tax deed to the county was void because the purported notice of expiration of redemption issued by the county auditor, and upon which the validity of the deed to the county depends, did not comply with the statute and did not terminate the right of redemption of the owner, Laurits Mandrup Jensen. As to this contention the appellants must prevail.

The notice of expiration of redemption is defective in several particulars. It states the amount required to redeem in one lump sum. The tax sale was held on December 8, 1931, and was for 1930 taxes. The lump sum of $414.96 stated in the notice includes taxes from 1927 to 1936 inclusive. This is also stated in the tax deed from Mountrail County to Fred Grandin.

In Paragraph 6 of the syllabus in Fish v. France, 71 N.D. 499, 2 N.W.2d 537, 538, we said:

'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.'

In this case the notice included in the lump sum required to redeem taxes levied for three years prior to 1930.

The notice of expiration of redemption was dated January 31, 1938, and in the lump sum stated as being necessary to redeem, taxes for the year 1936 were included. In a line of cases we have held that where a notice of a expiration of the period of redemption is issued by the county auditor upon a tax certificate acquired by the county at a tax sale, the inclusion in a lump sum therein claimed to be due of taxes which have been delinquent for less than three years prior to the service of the notice renders the notice invalid and a tax deed issued thereon void. Loy, for Use and Benefit of Union Securities Co. v. Kessler, 76 N.D. 738, 39 N.W.2d 260; Knowlton v. Coye, 76 N.D. 478, 37 N.W.2d 343; McDonald v. Abraham, 75 N.D. 457, 28 N.W.2d 582; Robertson v. Brown, 75 N.D. 109, 25 N.W.2d 781; Baeverstad v. Reynolds, 73 N.D. 603, 18 N.W.2d 20; Kelsch v. Miller, 73 N.D. 405, 15 N.W.2d 433, 155 A.L.R. 1186.

The defects in the notice of expiration of redemption clearly render it void. Consequently, the deed issued to Mountrail County is void, as is the tax deed from Mountrail County to Fred Grandin. He therefore had no title to convey to the plaintiff when he attempted to convey the property to her by warranty deed on February 16, 1949.

Not only was the tax deed to Mountrail County void because no lawful notice of expiration of redemption was given but it is void for another reason. The grantor named therein is M. L. Glarum, County Auditor of Mountrail County, and not the State of North Dakota, as the law requires. A tax deed to a county issued in the name of the county auditor rather than in the name of the state is void on its face. McDonald v. Abraham, 75 N.D. 457, 28 N.W.2d 582. Thus we have a claim of title originating in a tax deed which is void on its face but which, if it had been regular in form, would still be void because of the failure of the tax deed proceedings to comply...