Iowa & Dakota Land Co. v. Barnes Cnty.

• Decision Date: 29 October 1897
• Citation: 72 N.W. 1019,6 N.D. 601
• Parties: IOWA & DAKOTA LAND CO. v. BARNES COUNTY.
• Court: North Dakota Supreme Court

6 N.D. 601

72 N.W. 1019

IOWA & DAKOTA LAND CO.

v.BARNES COUNTY.

Supreme Court of North Dakota.

Oct. 29, 1897.

Syllabus by the Court.

In 1888 the county treasurer of Barnes county sold the lands described in the complaint at a tax sale, for an alleged tax levied on the lands in 1887. The lands so sold were described upon the assessment roll, and also upon the tax duplicate delivered to the treasurer by the county clerk, by a system of arbitrary signs or symbols, which descriptions were, at a date long subsequent to said sale, held to be insufficient in law, and void, under a decision of this court. Held, that inasmuch as the defective descriptions of the land were placed upon the assessment roll and tax list of the county by other officials of the county, who were responsible for the descriptions, and by them delivered to the treasurer, it became the duty of the treasurer, as a ministerial officer, to sell the lands so described, upon which the tax was not paid, and that such sale, under the facts stated, was not a mistake or wrongful act of the treasurer, within the meaning of section 1629 of the Compiled Laws. No action will lie, upon such a state of facts, under said section, to recover the amount bid, with interest, either against the county, or the county treasurer who made the sale.

Appeal from district court, Barnes county, Roderick Rose, Judge.

Action by the Iowa & Dakota Land Company against Barnes county. Judgment for defendant, and plaintiff appeals. Affirmed.Newman, Spalding & Phelps, for appellant. Edward Winterer, for respondent.

WALLIN, J.

This action was tried in the district court without a jury, and comes here for a trial anew, under section 5630 of the Revised Codes. There was a judgment below of dismissal, with costs against the plaintiff. The facts which are decisive of the case are undisputed. Among other things, the complaint alleges that one Bensen was county treasurer of Barnes county in the year 1888, and, as such treasurer, sold the lands described in the complaint, at the annual tax sale of 1888, to one Bowdle, for alleged taxes levied against said lands in the year 1887, and that Bowdle's claim against Barnes county arising on such sale has never been paid, but has been transferred to the plaintiff, and constitutes plaintiff's cause of action. The theory of the plaintiff's action is that the county treasurer sold the lands, not only without legal authority, but sold them by his own mistake or wrongful act, and that in so doing the county became liable for the principal and interest on the amount bid at such sale, and the treasurer and his official bondsmen became ultimately liable to the county for such principal and interest, under the provisions of section 1629 of the Compiled Laws, which section was in force at the time of the sale. The plaintiff's theory of the tax sale in question is embodied in the following paragraph of its complaint: “That said lands herein described were not assessed for taxation in the year 1887, and no taxes were levied thereon in that year; that in the year 1887 the auditor of said defendant, Barnes county, made out a tax list of the taxable lands in said county, which said tax list did not contain a list or description of said parcels of land hereinafter described, or of the lands for the alleged taxes on which either or any of the said parcels were so as aforesaid sold, and neither of said parcels of land was entered upon the tax list of said Barnes county for the year 1887.” After alleging that the auditor of the county made out a tax list in 1887, and a duplicate thereof, and that such duplicate list was properly authenticated and delivered to the treasurer, the complaint further states that said duplicate tax list “did not contain a list or description of the pieces or parcels of land hereinafter described, or either of them.” The lands referred to are described in the complaint in this action properly, and in the usual way. Issue was joined upon said averments of the complaint, and at the trial a stipulation embracing an agreed state of facts was brought up on the record, which is substantially as follows: First. That the treasurer of Barnes county, at the tax sale in 1888, as treasurer, sold the lands described in the complaint, for taxes claimed to have been levied thereon in the year 1887, to said Bowdle, for the several sums as stated in the complaint; that tax certificates issued on said sales, and were delivered to Bowdle by said treasurer; that the sums paid the treasurer on such sales have never been repaid to said Bowdle or to the plaintiff; and that Bowdle's claim has been transferred to the plaintiff. Second. That prior to said tax sale said treasurer gave the notice of said tax sale prescribed by law, and that, among other things, said notice embodied a list of the lands in question, and a description thereof. Third. That the assessment rolls, tax list, and duplicate tax list of Barnes county contained no other description of the lands described in the complaint for the years in question than the description set forth in the stipulation aforesaid, which description is found in Exhibit A of the stipulation, and constitutes the only description of the lands found in the assessment roll, tax list, and duplicate tax list of Barnes county for the years in question. It will be unnecessary to set out Exhibit A in full. One description will show the essential characteristics of all. The first description in said Exhibit A is as follows:

+----------------------------------------+
                ¦Description.  ¦Section.¦Township.¦Range.¦
                +--------------+--------+---------+------¦
                ¦N2   of S E4  ¦25      ¦138      ¦56    ¦
                +----------------------------------------+
                

Plaintiff's counsel declares in his brief-and the fact is conceded-that the descriptions on the county records (i. e. on the tax roll, tax list, and duplicate tax list) are of the same character as those considered and held to be insufficient by this court in Power v. Larabee, 2 N. D. 141, 49 N. W. 724, and Power v. Bowdle, 3 N. D. 107, 54 N. W. 404. From this brief statement of the issues and facts in the record, it appears that this court will not be embarrassed by the presence in the record of conflicting evidence or disputed facts. It is agreed that the county treasurer sold the lands described in the complaint for alleged taxes, and for the sums alleged and set opposite such description, and that said lands were not otherwise described on the tax records of the county at the time in question than as above set out, and that said records, one and all, contained an attempt to describe the land as above stated. But counsel, while agreeing as to the concrete facts, are wide asunder in their theories. Plaintiff's counsel insists that this court having declared in the two cases cited that just such descriptions as those existing and found upon the tax records in this case at the time of the sale were insufficient and wholly void as descriptions of...