Hefty v. Aldrich

• Decision Date: 29 March 1974
• Docket Number: No. 8837,8837
• Citation: 220 N.W.2d 840
• Parties: Sonja Overbo HEFTY, Plaintiff and Respondent, v. Maude F. ALDRICH et al., Defendants, and Credit Bureau of Valley City, Inc., Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 840

220 N.W.2d 840

Sonja Overbo HEFTY, Plaintiff and Respondent, v. Maude F. ALDRICH et al., Defendants, and Credit Bureau of Valley City, Inc., Defendant and Appellant.

Civ. No. 8837.

Supreme Court of North Dakota.

March 29, 1974.

As Modified on Denial of Rehearing June 27, 1974.

Syllabus by the Court

1. Tax deed is prima facie evidence of the truth of all the facts therein recited and of the regularity of all the proceedings from the assessment and valuation of the land by the assessor up to the execution of the deed.

2. County auditor's duty under Section 57--28--04, N.D.C.C., is to insure that all persons having an interest in the land according to the records of the county register of deeds are served with notice of expiration of period of redemption and that all holders of liens against the property also are so served. The county auditor must supply the names of all persons having an interest in the land to the clerk of court so that the clerk of court may ascertain the existence of judgment liens against any of those persons.

3. A third-party statement recorded in the office of the register of deeds which (1) contains no claim of an interest in property by a person, (2) creates no interest in property in that person, or (3) reserves or excepts no interest in property in that person, does not constitute a showing of an interest in property requiring notice to that person of expiration of period of redemption under Section 57--28--04, N.D.C.C.

4. In determining who is to be given notice as to expiration of period of redemption under Section 57--28--04, N.D.C.C., county officials may rely on their records.

5. A person who acquires property for the first time by purchasing a tax-deed interest and who, prior to purchase of the tax-deed interest, had no obligation to pay taxes on the land purchased, cannot be said to have strengthened his title thereby so as to equitably require the imposition of a trust relationship for the benefit of another.

6. Motion to amend findings of fact, conclusions of law, and judgment, under Rule 52(b), N.D.R.Civ.P., must be made within ten days after notice of entry of judgment.

7. Motion under Rule 60(b)(1), N.D.R.Civ.P., on ground of excusable neglect, which does not show excuse for neglect, must fail.

8. Where only showing made tends to lead to conclusion that evidence was not 'newly discovered' and that there was a lack of due diligence in presenting it or a deliberate choice not to present it, motion for further proceedings under Rule 59(b)(4) or Rule 60(b)(4), N.D.R.Civ.P., must fail.

9. Rule 60(b)(6), N.D.R.Civ.P., although providing an extraordinary procedure, may not be used as a substitute for appeal nor to relieve a party from deliberate choices he has made, nor may it be used where any of subdivisions (1) through (5) of Rule 60(b) might be employed unless something more of an extraordinary nature justifying relief from the operation of the judgment is present.

10. Ruling of trial judge refusing to reopen judgment under Rule 60(b), N.D.R.Civ.P., will not be reversed unless trial judge has abused his discretion.

L. A. W. Stephan, Valley City, for plaintiff and respondent.

John T. Paulson, Valley City, for defendant and appellant.

VOGEL, Judge.

This is an action to quiet title. The plaintiff is the grantee in a quitclaim deed dated September 2, 1970, executed by Barnes County, North Dakota, which had obtained a tax deed to the property on October 2, 1968, for nonpayment of taxes.

The plaintiff commenced the action on November 6, 1970. One defendant, Credit Bureau of Valley City, Inc., the appellant, answered and alleged that it was a lienholder by reason of a judgment obtained prior to the issuance of the tax deed to Barnes County, and that it was not duly served with a notice of expiration of the period of redemption from the tax sale as required by law, and that the tax deed therefore was void.

The essential facts are not in dispute. Sig Overbo and his wife, Lilly Overbo, were the record owners in common of the property involved. The taxes on the property were not paid, and the tax deed was issued to Barnes County.

The judgment by which the Credit Bureau claims to have obtained its lien was entered on November 24, 1964, against Fred Schwartz and Lilly Matilda Schwartz and was docketed in the office of the clerk of court under the surname Schwartz. It was developed in the testimony that Sig Overbo and Lilly Overbo were divorced in 1958, and subsequently Lilly Overbo married Fred Schwartz. She died on June 15, 1967. The record title owners were Sig Overbo and Lilly Overbo. No claim is made that the statute was not complied with as to attempting service of notice of expiration of period of redemption upon them.

At the trial, the plaintiff, who happens to be a daughter of Lilly Overbo Schwartz, relied for her title upon the quitclaim deed from the County and upon the tax deed to the County. This tax deed is 'prima facie evidence of the truth of all the facts therein recited and of the regularity of all the proceedings from the assessment and valuation of the land by the assessor up to the execution of the deed.' Sec. 57--28--09, N.D.C.C.

There is nothing in the record of this case to rebut the prima facie evidence 'of the regularity of all the proceedings from the assessment and valuation of the land by the assessor up to the execution of the deed' with the exception of the county auditor's uncontradicted testimony that the Credit Bureau was not served with notice of expiration of period of redemption. The defendant claimed that the tax deed proceedings were fatally defective only because the Credit Bureau, a judgment lienholder, was not duly served with notice of expiration of period of redemption and was entitled to such notice.

The testimony at the trial by the county auditor and the clerk of court was to the effect that the register of deeds had certified to the clerk of court that Sig Overbo and Lilly Overbo were the owners of record; that the clerk of court had found no judgment against them; and that the statutory requirements had been complied with.

The statute relating to service of notice of expiration of period of redemption is Section 57--28--04, N.D.C.C., which provides:

'The county auditor shall serve the notice of the expiration of the period of redemption upon the owner of the record title of the real estate sold to the county for taxes, and upon each mortgagee, lien holder, and other person interested therein as may appear from the records of the register of deeds and the clerk of the district court of said county. . . .'

The statute then provides for the manner of service of the notice, and the duties of the county auditor in making such service. It also requires that the register of deeds and the clerk of the district court must furnish the auditor, within ten days after a request by the county auditor, a certified list giving the names and addresses of the persons in the classifications specified in the statute.

The records of the clerk of court are indexed according to the names of persons, not land descriptions. See subdivisions 4, 7, 8, and 9 of Section 11--17--01, N.D.C.C. There is no way to determine who has a judgment lien on may particular land from examination of records in the office of the clerk of court alone. Therefore, when the statute, 57--28--04, N.D.C.C., requires that notification of expiration of period of redemption be served 'upon each . . . lien holder, . . . therein as may appear from the records of . . . the clerk of the district court . . .' the intention must be that service be made upon each person who, according to the records of the clerk of court, has a judgment lien against any person who, according to the records of the register of deeds has an interest in the land in question. It necessarily follows, we believe, that it is the duty of the county auditor to request from the register of deeds a list of all persons (with addresses, if available) having an interest in the property and that this list, when completed, be sent to the office of the clerk of court so that the clerk of court can check the name indexes for the names and addresses of persons having liens against any of the persons having an interest of record in the property. The list compiled by the register of deeds of persons having an interest of record in the premises and the list compiled by the clerk of court of holders of liens against property owned by any of those persons must then be sent to the county auditor. (The foregoing discussion relates to judgment liens, not mechanic's liens, as to which the clerk of court will maintain a tract index pursuant to Section 35--27--12, N.D.C.C.)

An abstract of title was received in evidence. It showed the recording in the office of the register of deeds of a 'HOMESTEAD STATEMENT' on October 31, 1966. The Credit Bureau claims that the recording of the homestead statement constituted actual notice of the interest of Lilly Schwartz in the property because of the recital in the homestead statement that 'it appears that the said Lilly Schwartz (Title in the name of Sig and Lilly Overbo) Occupies a homestead, which she owns, and which is described as (description of the property in question).' The original homestead statement was not offered in evidence.

The trial judge determined that the plaintiff had proved a prima facie case which had not been rebutted by the showing at trial adduced by the Credit Bureau. The trial judge further found that the service by mail of the county auditor to all persons required to be served with notice as to the expiration of period of redemption under Section 57--28--04, N.D.C.C., had been properly made and that therefore the county auditor, the register of deeds, and the clerk of court had all fulfilled the duties imposed upon them by Section 57--28--04, N.D.C.C.

On the basis of the record made at the trial, we agree.

The third-party homestead...