Jensen v. Schwartz
| Decision Date | 29 May 1958 |
| Parties | J. O. JENSEN, as Administrator of the Estate of Jens J. Jensen, Plaintiff and Appellant, v. Alfred SCHWARTZ, Ella Schwartz, Warren H. Schwartz, Billings County, a North Dakota Public Corporation, Mobil Producing Company, a foreign corporation, Stanolind Oil and Gas Company, a foreign corporation, and all other persons unknown, claiming any estate or interest in, or lien or encumbrance upon the property described in the complaint, Defendants and Respondents. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. A tax deed issued to the county in the name of the county auditor is void in that it was not issued in the name of the State of North Dakota, but nevertheless, the title vests in the county in such case if the proceedings leading up to the deed were carried out strictly in accordance with law.
2. An attack on the former judgment in a subsequent action constitutes a collateral attack upon such prior judgment of the court. Such attack is ineffective unless the record of the original action shows the court had no jurisdiction.
3. Sec. 32-1707, NDRC 1943, provides for grounds upon which service by publication may be obtained upon an unknown person or persons defendant in an action to quiet title, and where the affidavit for publication of summons has been properly draw in accordance with such statute and other statutory provisions for service by publication upon an unknown person or persons defendant have been strictly complied with, a judgment obtained in an action to quiet title is binding upon such unknown person or persons. Bartell v. Morken, N.D., 65 N.W.2d 270; Smith v. Mountrail County, N.D., 70 N.W.2d 518.
4. The judgment rendered by a court of general jurisdiction having jurisdiction of the parties and subject matter imports absolute verity as long as it stands.
Lyche & Lyche, and H. G. Ruemmele, Grand Forks, for plaintiff and appellant.
Mackoff, Kellogg, Muggli & Kirby, Dickinson, for Alfred Schwartz, Ella Schwartz and Warren H. Schwartz.
W. W. Eichhorst, Medora, for Billings County.
Cox, Pearce & Engebretson, Bismarck, for respondents Mobil Producing Company and Stanolind Oil & Gas Co.
This is an action to quiet title and determine adverse claims to the Southwest Quarter (SW 1/4) of Section Three (3), in Township One Hundred Thirty-seven (137), North, Range One Hundred (100) West of the 5th p. m. in Billings County, North Dakota. Jens J. Jensen was the owner of this property at the time of his death. The plaintiff, a son, as Administrator of the Jensen Estate claims ownership of said land for the heirs and asks for an accounting. The defendants deny his claim and allege that they are the owners of the land in question by virtue of a tax deed from Billings County, adverse possession, and an action to quiet title in Alfred Schwartz. The defendant, Mobil Producing Company claims to have oil and gas leases in the land involved, and the Stanolind Oil & Gas Company claims to have mineral interests. Billings County claims no interest in the land or oil and supports the claim of the defendants.
The record shows a warranty deed to 'Jens J. Jensen, St. Paul, Minnesota' conveying to him the property above described, dated April 13, 1922.
The evidence shows that this is ranch land. Mr. Jensen never lived on it. He leased it to a neighboring rancher. He died in St. Paul, Minnesota, on June 21, 1924. No Administrator was appointed at that time. Following his death his widow, Annie Jensen, took over the management and paid the taxes. She died in 1937. Her last tenant was Dick Myers who left the land in the fall of 1936. He left a fence he had built on the land and it was accepted by the heirs as payment of his rent. The plaintiff, J. O. Jensen, then claims that he wrote the defendant, Alfred Schwartz, an adjoining rancher, a letter to the effect that he could rent the land on the same terms as Myers had but he would have to pay for the fence if he moved it onto his own place. He received no reply but claims the offer was accepted. Schwartz claims he does not remember receiving that letter but he did actually take over possession of the premises in 1937 and moved a part of the fence over on his land to make those premises a part of his ranch. He made further improvements. Schwartz claims he rented these premises from the county commissioners in 1937 and 1938, and that he paid them for the fence. There is no evidence from the county to support that. It was not until 1938 that the county took any steps to procure a tax deed. The plaintiff, however, showed no more interest in this land and kept no track of what was being done with the premises until seventeen years later. On July 10, 1953, he sent a registered letter to the defendant, Alfred Schwartz, demanding the rent. When defendant paid no attention to that letter plaintiff commenced proceedings in the county court of Billings County for the administration of the Estate of Jens J. Jensen and secured appointment as the administrator of said estate on April 19, 1954, and shortly thereafter commenced this action.
In the meantime Billings County attempted to get a tax deed to the premises. On Jan. 19, 1938, the county auditor caused to be mailed to Jens J. Jensen, at St. Paul, Minnesota, a notice of the expiration of the period of redemption. No redemption was made and the county auditor, on Nov. 1, 1938, issued a tax deed to Billings County. The evidence shows that Schwartz rented the land from the County in 1939 and 1940. On Dec. 13, 1940, Billings County sold the property to Alfred Schwartz, the defendant herein, by a county deed and he has continued in possession thereof.
The first matter for consideration is the validity of the tax deed. The evidence shows that it was issued by the county auditor and not in the name of the state. Such a deed is void.
Buman v. Sturn, 73 N.D. 561, 568, 16 N.W.2d 837, 840 and cases cited.
It, however, is color of title. Woolfolk v. Albrecht, 22 N.D. 36, 133 N.W. 310; Power v. Kitching, 10 N.D. 254, 86 N.W. 737. Title nevertheless vested in the county by operation of law if the proceedings leading up to the deed were valid. McDonald v. Abraham, 75 N.D. 457, 28 N.W.2d 582; Grandin v. Gardiner, N.D., 63 N.W.2d 128.
On Sept. 28, 1945, the defendant, Alfred Schwartz, as plaintiff, commenced an action to quiet title in himself to these and other premises. The defendants named were Jens J. Jensen, John T. Eide, S. E. Bladson, the unknown heirs, devisees, or legatees, of J. S. Johnson, 'and all other persons unknown claiming any estate or interest in or lien or encumbrance upon the property described in the complaint.' Service was made by publication. Judgment was taken by default quieting title in Alfred Schwartz. He and his wife, on May 22, 1951, deeded the land involved to themselves, Alfred and Ella Schwartz and their son, Warren H. Schwartz, as joint tenants. Plaintiff attacks the service and claims such judgment is void as to the heirs of Jens J. Jensen.
An attack on a former judgment, in a subsequent action, constitutes a collateral attack upon such prior judgment of the court duly entered. Such an attack is ineffective unless the record of the original action shows that the court had no jurisdiction. Bartell v. Morken, N.D., 65 N.W.2d 270; Smith v. Mountrail County, N.D., 70 N.W.2d 518; Erker v. Deichert, 57 N.D. 474, 222 N.W. 615; Baird v. City of Williston, 58 N.D. 478, 226 N.W. 608. It is, therefore, necessary to examine the record of the Schwartz judgment. The court was asked to take judicial notice of the records and files in the case of Alfred Schwartz v. Jens J. Jensen and it was stipulated that the complete record of that case be included in the settled statement of the case at bar. The record shows that service on the unknown defendants, which included the heirs of Jens J. Jensen in whose behalf this action was brought, was made by publication and the judgment was entered by default. That judgment quieted title in the plaintiff, Alfred Schwartz, against such unknown 'defendants and each and every one of them and all persons claiming under them, or any of them, and they are forever enjoined from setting up any claim to the said premises or any part thereof adverse to the title and possession of said Alfred Schwartz, his heirs and assigns.'
That judgment barred any claim of the heirs of Jens J. Jensen against the premises involved. It is now claimed that no valid service was made upon the Jensen heirs in that action, so that the court was without jurisdiction to enter any judgment barring their interests.
Service on unknown defendants is provided by Section 32-1707 NDRC 1943. The affidavit necessary for such service shall be required to state in substance the following facts:
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