Heasley v. State
| Decision Date | 04 May 1962 |
| Docket Number | No. 8002,8002 |
| Citation | 115 N.W.2d 334 |
| Parties | Paul HEASLEY, Plaintiff and Appellant, v. The STATE of North Dakota, and Stutsman County, North Dakota, a public corporation, Defendants and Respondents. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. Under Rule 56(c), N.D.R.Civ.P., a moving party is entitled to a summary judgment if it appears that there is no genuine issue to be tried as to any material fact and that the movant is entitled to judgment as a matter of law.
2. The State is immune from suit at the instance of individuals without its consent.
3. Taxes upon real property are a perpetual paramount lien thereon against all persons except the United States and the State of North Dakota.
4. A purchaser of land at tax sale acquires no warranty by the State or County as to the title of the property on which he bids, and when no redemption from the sale is made and he becomes entitled to a tax deed, that deed bears no warranty, express or implied, of title or against encumbrances prior to the tax lien.
Francis Bredienbach, Bismarck, attorney for plaintiff and appellant.
Leslie R. Burgum, Atty. Gen., and Paul M. Sand, Asst. Atty. Gen., Bismarck, and James R. Jungroth, State's Atty. of Stutsman County, Jamestown, for defendants and respondents.
This is an appeal from a judgment dismissing plaintiff's action entered pursuant to an order of the district court granting defendants' motion for summary judgment. According to the allegations of the complaint, on December 13, 1955, certain lands located in Stutsman County were sold at tax sale and bid in by the plaintiff for the sum of $4,922.86, which the plaintiff paid to the defendant Stutsman County and received therefor a certificate of tax sale. No redemption from the tax sale was made and upon the expiration of the period of redemption provided by statute and after notice duly given, the county auditor issued a tax deed to the plaintiff for the land described in the certificate of sale. It is then alleged that the defendants by operation of law did actually and impliedly represent and warrant to the plaintiff that they conveyed to him an absolute estate in fee simple subject only to claims of the State or its taxing districts resulting by virtue of taxes, liens or encumbrances arising after the issuance of the tax certificate of sale, and that the defendants warranted the title as a new and complete title extinguishing all prior titles and encumbrances. The complaint states:
'That the defendants have breached the representations and warranty aforesaid; that the defendants have negligently permitted the impairment of their obligations created by the Certificate of Tax Sale and Tax Deed as aforesaid; that said defendant State of North Dakota, in actions in which it was a party and had full knowledge, has not only negligently failed to support its warranty and to support the obligation of its contracts, but on the other hand has negligently permitted the jurisdiction of its Courts to be usurped and has assisted in (by entry of a delated nunc pro tunc appearance) the entry of judgments in United States District Court purportedly confirming * * *.'
By way of answer the defendants deny that they warranted individually or collectively, expressly or impliedly, a fee simple title in the property. They allege that this property became subject to a tax lien in favor of the United States Government prior to the issuance of the tax deed to the plaintiff, that the tax deed conveyed only such interest as Stutsman County and the State of North Dakota had in the property, and that the lien of the United States was superior to any interest the State of North Dakota or the County of Stutsman acquired by virtue of the tax certificate or the tax deed.
The sole question on this appeal is whether on the pleadings and showing made before the district court the defendants are entitled to a summary judgment. To be so entitled it must appear that there is no genuine issue as to any material fact to be tried. Rule 56(c), N.D.R.Civ.P.; Temme v. Traxel, N.D., 102 N.W.2d 1.
Plaintiff's complaint mingles allegations of negligence on the part of the defendants with allegations of warranty of title, express or implied, claimed to have arisen by virtue of the tax certificate and deed and the statutes under which they were issued. This is further emphasized by the allegation:
'That as a proximate result of the defendants breach of warranty and negligence, as aforesaid, the plaintiff has been damaged to the extent of the value of the real property and appurtenances hereinbefore described, * * *.'
In other words, the plaintiff attempts to recover from the State and County for damages based upon acts which he claims constitute both a tort and a breach of a contract of warranty of title.
With respect to the allegations of negligence, we would point out that the State is immune from suit at the instance of individuals without its consent. Paulus v. State of South Dakota, 58 N.D. 643, 227 N.W. 52; State ex rel. Shafer v. Lowe, 54 N.D. 637, 210 N.W. 501. The State has given its consent to be sued in certain actions. Section 32-12-02, NDCC, provides that:
'An action respecting the title to property, or arising upon contract, may be brought in the district court against the state the same as against a private person.'
In Watland v. North Dakota Workmen's Compensation Bureau, 58 N.D. 303, 225 N.W. 812, this Court held that the foregoing provision 'is a limited consent and does not embrace suits to recover damages for neglect of official duty.'
'The county is an agency of the state, and its liability to suit is based upon statutory or constitutional consent.' Mayer v. Studer & Manion Co., 66 N.D. 190, 262 N.W. 925.
While a county may sue and be sued, Section 11-10-01, NDCC, the allegations of negligence with respect to Stutsman County do not state a claim independent of the alleged warranty. Unless there is a warranty, the allegations of negligence fail as a matter of law to state a cause of action against the County or the State and no justiciable issue of fact with respect to the negligence of the County or State exists.
We go now to the question of whether the County or the State or both are liable to the plaintiff for breach of a contract of warranty...
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