Griffin v. Denison Land Co.
| Decision Date | 31 December 1908 |
| Court | North Dakota Supreme Court |
Rehearing denied February 26, 1909.
Appeal from District Court, Burleigh county; Winchester, J.
Action by T. W. Griffin against the Denison Land Company. Judgment for plaintiff, and defendant appeals.
Affirmed in part, and reversed in part, with directions.
Judgment affirmed in part and reversed in part. Appellant recovered costs.
Newton & Dullam, D. L. Boynton, of counsel, for appellant.
The designation of the newspaper was sufficient. Fisher v Betts, 12 N.D. 197, 96 N.W. 132; Knight v Alexander, 37 N.W. 796; Reimer v. Newell, 49 N.W. 865; Sperry v. Goodwin, 46 N.W. 328; Cass County v. Security Imp. Co., 7 N.D. 520, 75 N.W. 775; Emmons Co. v. Bank, 9 N.D. 583, 81 N.W. 22.
The word "contiguous" means in actual contact, touching also adjacent, near, neighboring, adjoining. Century Dictionary; Cyc.; 3 Am. & Eng. Enc. Law (1st Ed.) 803; State Finance Co. v. Beck, 15 N.D. 374, 109 N.W. 357.
The section is the unit of measurement of land and different subdivisions are one tract. Martin v. Cole, 38 Iowa 141; Farnham v. Jones, 19 N.W. 83; Hall's Heirs v. Dodge, 18 Kan. 280; Weaver v. Grant, 39 Ia. 294.
Omission of description from notice does not vitiate sale. Shawler v. Johnson, 52 Ia. 472; Allen v. Armstrong, 17 Iowa 508; Hurley v. Powell, 31 Iowa 64; Madison v. Sexton, 37 Iowa 562; Slocum v. Slocum, 30 N.W. 562; Davis v. Magoun, 80 N.W. 423.
Legislature can make deed conclusive evidence of recitals therein. Allen v. Armstrong, supra.
Mockler & Johnson, for respondent.
Omission to designate newspaper for publication of notice of tax sale is fatal to proceedings thereunder. Cass County v. Security Improvement Co. 7 N.D. 528, 75 N.W. 775; Russell v. Gilson, 31 N.W. 692; Eastman v. Linn, 2 N.W. 693.
Power to sell land for taxes is a naked power, and strict compliance with statute essential. Woodbridge v. State, 43 N.J.L. 262, 270, and cases cited; Hooper v. Ex'rs, 16 N.J.Eq. 382; Williams v. Peyton, 4 Wheat. 77; Early v. Doe, 16 How. (U. S.) 608.
Assessment and taxation of two tracts as one render entire proceeding a nullity. State Finance Co. v. Beck, 15 N.D. 374, 109 N.W. 357; Boardman v. Bourne, 20 Ia. 134; Ackley v. Sexton, 24 Ia. 320; Martin v. Cole, 38 Ia. 141; Linn County Bank v. Hopkins, 28 P. 606, 27 Am. St. Rep. 309.
"Contiguous" means touching sides, adjoining, adjacent. Two tracts touching at one point only are not contiguous. Linn Co. Bank v. Hopkins, supra; Kresin v. Mau, 15 Minn. 87 (Gil).
In absence of things inherently essential to a valid tax, payment as a condition of relief is not required. Finance Co. v. Beck, 15 N.D. 374, 109 N.W. 357; Roberts v. Bank 8 N.D. 504, 79 N.W. 1049.
This action was brought to quiet title to the S. E. 1/4 of section 2 in township 139, range 81 and the N.E. 1/4 and the S.W. 1/4 of section 22 in township 140, range 81, in Burleigh county. The plaintiff claims to be the owner in fee. The defendant claims to be the owner by virtue of two certain tax deeds issued on sales of said land for taxes for the year 1908, one deed being for the S. E. 1/4 of section 2, and the other for the two quarters named in section 22. No question is made about the title being adequate to warrant the relief which the plaintiff seeks if the tax titles of the defendant are invalid.
The first objection made to respondent's title applies to both tax deeds, and is the only one made to the validity of the first deed mentioned. It goes to the sufficiency of a resolution passed by the board of county commissioners of Burleigh county designating the newspaper in which to publish the notice of sale of lands for delinquent taxes for the year 1898, and the publication thereunder. Plaintiff had judgment quieting title in him as against defendant and these tax deeds in the district court. If the resolution referred to was adequate and sufficient under the provisions of the law, appellant is entitled to a reversal of the judgment in the district court as to the S. E. 1/4 of section 2, but other questions are raised on his title to the other two quarters. If, on the other hand, the resolution was insufficient, appellant's title must fail as to all three tracts described. Section 1259, Rev. Codes 1899 (section 1574, Rev. Codes 1905), as far as material to this controversy, reads as follows: The resolution of the county commissioners directing the publication of the delinquent tax list for 1898 taxes, and the notice of sale, designated the Bismarck Daily Tribune as the official paper in which to make the publication of such list. The record shows that the list was published in one issue of the Bismarck Daily Tribune and in two issues of the Bismarck Weekly Tribune, that the papers are published by the same parties, and that the weekly is made up of the contents of the different issues of the daily.
It is contended that, to comply with the law, it was necessary in such case for the county commissioners to direct the publication in one issue of the daily and in two issues of the weekly, each by name, and, having failed to do so, that no legal or valid publication was made. It is also intimated that the "Bismarck Daily Tribune" and the "Bismarck Weekly Tribune" are separate and distinct newspapers; in other words, that the Weekly Tribune is not the weekly edition of the Daily Tribune. It is conceded that this resolution is jurisdictional. We are cited to no authorities which we consider directly in point to sustain respondent's construction of the statute. He cites Russell v. St. Paul, M. & M. Ry. Co. 36 Minn. 366, 31 N.W. 692. In that case the Minneapolis Tribune was designated as the paper in which the delinquent tax list should be published. The Tribune Company published two papers, one the "Minneapolis Weekly Tribune," and the other the "Minneapolis Daily Tribune." The list and notice were published in the "Minneapolis Weekly Tribune." The statute required simply a designation by resolution of the paper in which the list and notice were to be published, and said nothing about daily and weekly papers or issues. The Minnesota court held that the order directing the publication named a paper which did not exist, and that from such order the public would be unable to ascertain where to look for the published list. That court said: "An omission by the board to designate any newspaper, or publication in any other than the one designated by it, would be fatal to any judgment entered thereon." He also cites Cass County v. Security Improvement Company et al., 7 N.D. 528, 75 N.W. 775, and that case is in principle identical with the Minnesota case. The designation was the "Fargo Forum," when, in fact, two papers were published, neither of which was named by the resolution. As we have said, we do not consider these authorities as sustaining respondent's contention. The statute did not require publication in both daily and weekly editions, and the resolutions designated neither the daily nor the weekly, but a paper which did not exist in either case. Neither does the appellant cite any authorities in point.
In the case at bar a paper was published in Burleigh county, known as the "Bismarck Daily Tribune." It was a daily paper. If the fact that the word "Daily" appeared in its title and the word "Weekly" in the title of the other makes two separate and distinct papers, and not daily and weekly editions of the same paper, in a legal sense, then no legal publication of the delinquent tax list and notice of sale could be made, as no provision is made for publication in papers which have only a daily or only a weekly edition in counties in which a daily paper is published, as the publication in a daily paper and also in a separate weekly paper is not authorized by the statute. A weekly edition of the Tribune was also published. Necessarily the Weekly Tribune could not be called or named the "Bismarck Daily Tribune," because such a name would be misleading and furnish no means by which to distinguish the weekly issue from the daily. The law directs what shall be done in counties in which a daily paper is published namely, that the delinquent list shall be published in one issue of the daily edition and in two issues of the weekly edition of the same paper. Read in connection with the law, the resolution of the board of county commissioners designating the "Bismarck Daily Tribune" notified the public where to look for one publication of the notice; read in connection with the law, the resolution also notified the public that a weekly edition of the Tribune was published, and to look in that edition for the other two publications of the notice. In proceedings of this kind, based upon a statute, the public must of necessity inspect the statute and be guided by its requirements, and when the statute prescribes that one publication shall be made in the daily edition and two in the weekly, and the resolution names the daily, it...
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