Griffeth v. Cass County

• Decision Date: 21 July 1976
• Docket Number: No. 9195,9195
• Parties: Gary G. GRIFFETH, and Opal R. Griffeth, husband and wife, Plaintiffs and Appellees, v. CASS COUNTY, North Dakota, a Municipal Corporation, et al., Defendants, and Esther Williamson, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 301

244 N.W.2d 301

Gary G. GRIFFETH, and Opal R. Griffeth, husband and wife, Plaintiffs and Appellees, v. CASS COUNTY, North Dakota, a Municipal Corporation, et al.,

Defendants,

and

Esther Williamson, Defendant and Appellant.

Civ. No. 9195.

Supreme Court of North Dakota.

July 21, 1976.

Syllabus by the Court

1. Service of the notice of expiration of the period of redemption in the form, substance and kind prescribed by statute is jurisdictional as to tax title proceedings. Section 57--28--04, N.D.C.C.

2. Each of the named county officers must strictly comply with the statute relating to the notice of expiration of the period of redemption in order to make the tax title proceedings valid, if actual service of the notice is not made on interested persons.

3. A county auditor has the duty to search the records of his own office in an effort to ascertain the post office address of a delinquent taxpayer whose right of redemption is due to expire. Failure to use the most specific information available in the auditor's office relative to the record owner's address in conjunction with mailing a notice of the expiration of the period of redemption is jurisdictional, and therefore fatal, to tax title proceedings, if the failure results in lack of service and consequent prejudice to the record owner.

4. For the reasons stated in the opinion, the notice of expiration of the period of redemption in this case was defective, and the county deed is thereby invalid; therefore, the judgment quieting title in the grantees of the county deed is reversed and the case is remanded for disposition consistent with this opinion.

Herschel I. Lashkowitz, Fargo, for defendant and appellant.

Eugene A. Kruger, Kruger, Yuill & Feder, Fargo, for plaintiffs and appellees.

ERICKSTAD, Chief Justice.

This is an appeal from a Cass County District Court judgment quieting title in Gary and Opal Griffeth to Lot Twelve (12), Block Nineteen (19), College Second Addition in the City of Fargo.

Cass County had acquired title to the property in 1971, with the county auditor's records standing in lieu of a tax sale certificate as authorized by Section 57--24--23, N.D.C.C. The auditor's tax deed was dated April 5, 1971.

More than three years later, pursuant to Section 57--28--01, N.D.C.C., the auditor initiated statutory procedures relating to notice of the expiration of the period of redemption. Prior to June 1, 1974, the auditor prepared a yellow card listing the record owner of the property, her name and address as 'Augusta M. Schultz--Fargo, North Dakota,' and the legal description of the property. In accordance with Section 57--28--04, N.D.C.C., the auditor forwarded the card to the register of deeds and to the clerk of district court.

The deputy clerk of district court checked the name and the property description for liens or judgments against either and noted a judgment against a man named Williamson. A deputy in the register of deeds' office determined that 'Augusta M. Schultz was the owner, and that at that time there was a mortgage and assignment of mortgages against that property.' As to the procedure relating to judgment liens, see Hefty v. Aldrich, 220 N.W.2d 840, 843--844 (N.D.1974).

Notices of expiration of period of redemption were sent to 'Augusta M. Schultz--Fargo, North Dakota' and to National Housing Corporation, c/o Universal C.I.T. Credit Corporation, 1750 Hennepin Avenue, Minneapolis, Minnesota.' Both were returned as undeliverable.

The auditor testified that his office does not normally parallel legal descriptions and street addresses, that his office checked the tax list in the treasurer's office in order to prepare forms showing the taxes due, and that his office searches the telephone and city directories to find an address if there is none with the property description.

In July 1974, the auditor published notice of the expiration of period of redemption, as he is required to do by Section 57--28--06, N.D.C.C. This notice included reference to Augusta Schultz and to a street address of 810 27th Street North in Fargo. During the interim the auditor had contacted the city assessor and learned the street address of the property because he had become 'aware of the new section of law which required in all legal publications, if it's possible, some means of identification or address.' See S.L.1973, Ch. 372, § 1, codified as Section 46--05--08, N.D.C.C. (1973 Supp.), and repealed by S.L.1975, Ch. 420, § 1.

The name and street address also appeared in the published notice of the annual sale of real estate forfeited to the county because of delinquent taxes. The sale was duly held on November 19, 1974, at which time the Griffeths purchased the property for $3,024.37. Their county deed was recorded on November 29, 1974, one minute after the auditor's tax deed of April 5, 1971, had been recorded.

The Griffeths subsequently brought this action to quiet title, naming as captioned defendants Burdette Williamson, Esther Williamson, and Augusta M. Schultz, among others. Only Esther Williamson, whose maiden name is Esther Augusta Matilda Mammenga, who was married to a Schultz and widowed, and who subsequently married Burdette Williamson, answered the complaint. Esther Williamson, a.k.a. Augusta Schultz, had purchased the lot in 1958 after her first husband's death, and built a three-bedroom house on the lot which she has occupied since December 1966. On February 15, 1968, she paid her taxes at the treasurer's office and, according to her testimony, instructed that office to send her subsequent mail to 810 27th Street North in Fargo. When the property was sold to the Griffeths, there was a balance due on the 1969 taxes and no subsequent taxes had been paid.

By Section 57--20--02, N.D.C.C., the county auditor is required to 'make out the tax lists according to the prescribed form to correspond with the assessment districts of the county.' These tax lists shall be delivered to the county treasurer on or before December 15 of each year and the treasurer must collect the taxes due. It appeared in this case that a 'Statement of Real Estate Taxes for the Year 1973' was prepared in the Cass County Auditor's office in November 1973 and that the statement was captioned 'Augusta M. Schultz, College Second Addition, 810 North 27, Fargo, North Dakota 58102.'

In response to the contentions of Esther Williamson (Augusta M. Schultz) that the auditor should have either served the person residing on the property, personally by reason of Section 57--27--02, N.D.C.C., or that the auditor, having actual knowledge of her mailing address, should have sent the notice of expiration of period of redemption to her at that street address, the trial judge held that the auditor is not required to go beyond the records of the register of deeds and the clerk of district court to ascertain the address of the record owner. In doing so, the trial judge relied upon the decision in Hefty v. Aldrich, supra.

In Hefty it was asserted that the tax deed proceedings were fatally defective because a judgment lienholder entitled to notice was not served with notice of expiration of period of redemption. In determining that a third-party homestead statement recorded pursuant to Section 50--24--15, N.D.C.C., 'is neither a muniment of title as to the individual named nor a claim by an individual to an interest,' we noted that the county officials concerned with Section 57--28--04, N.D.C.C., may rely on the records and that 'the statute does not place upon them the burden of otherwise ascertaining who is the actual owner of the property.' Hefty v. Aldrich, supra, 220 N.W.2d at 845.

The trial judge concluded that 'there is nothing in the record to justify a court in holding under the law that it was his (the auditor's) duty to search the records of the yearly real estate tax statements to ascertain a more particular address of the owner.' We think that this conclusion falters both constitutionally and statutorily, and we reverse the judgment.

In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the United States Supreme Court held that notice by publication given 'in strict compliance with the minimum requirements' of a statute providing for common trust funds did not meet the rule that notice must be reasonably calculated to reach interested parties. Id., at 309, 314, 70 S.Ct. at 655, 657. Mullane is only analogous to this case, since the proceedings there were judicial, designed to settle the corporation's first account as common trustee, and the decree would have 'sealed and wholly terminated' every right which the beneficiaries would have had against the trust company for improper management of the fund during the accounting period. Id., at 311, 70 S.Ct. at 656.

The opinion in Mullane and the restatement of its rule in Schroeder v. City of New York, 371 U.S. 208, 212--213, 83 S.Ct. 279, 282, 9 L.Ed.2d 255 (1962), 'that notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable and whose legally protected interests are directly affected by the proceedings in question' provide us with the constitutional perspective to this case.

In this state the right of redemption has been assiduously guarded. Thus, we have declared that 'service of the notice of the expiration of the period of redemption in the form, substance and kind prescribed by statute is jurisdictional.' Brink v. Curless, 209 N.W.2d 758, 767 (N.D.1973), overruled in other part by City of Bismarck v. Muhlhauser, 234 N.W.2d 1, 5 (N.D.1975). In Mayer v. Ranum, 75 N.D. 548, 30 N.W.2d 608 (1948), Syllabus 2, we noted that an owner is charged with the knowledge that failure to pay real estate taxes will eventually result in sale of the land, 'but such proceedings are drastic and every step therein prescribed by statute must be strictly complied with.'

In Payne v. A. M. Fruh Company, 98 N.W.2d 27 (...