Kelsch v. Miller

• Decision Date: 31 August 1944
• Docket Number: No. 6899.,6899.
• Citation: 15 N.W.2d 433,73 N.D. 405
• Parties: KELSCH v. MILLER.
• Court: North Dakota Supreme Court

73 N.D. 405

15 N.W.2d 433

KELSCH

v.MILLER.

No. 6899.

Supreme Court of North Dakota.

Aug. 4, 1944.

Rehearing Denied Aug. 31, 1944.

Appeal from District Court, Stark County; Berry, Judge.

Action by Margaret Kelsch against John M. Miller to determine adverse claims to certain land. Judgment for defendant, and plaintiff appeals.

Affirmed.

Syllabus by the Court.

1. In the instant case it is held, for reasons stated in the opinion:

(a) That the time when the right of redemption would expire was stated definitely and accurately in the notice of expiration of period of redemption on land sold to the county at tax sale.

(b) That the sum stated in such notice as the amount required to be paid to effect redemption was not in excess of the amount required to be paid for such purpose.

2. A notice of expiration of period of redemption from a tax sale which contains the recitals and gives the information prescribed by law, is not vitiated because the notice contains other recitals which give additional information not required to be given, which is beneficial rather than harmful and can not possibly operate to the prejudice of anyone entitled to be served, or who is served, with such notice.

3. In the instant case a tract of land was bid in for the county, at the tax sale held in December, 1935, for the delinquent taxes for the year 1934. The taxes for 1935 became delinquent, and pursuant to the tax sale held in December, 1936, a subsequent tax sale certificate was issued to the county therefor. No redemption was made from either certificate, and in May, 1940, notice of expiration of the period of redemption was issued. Thereafter it was served as prescribed by law upon the record title owner and others interested in the land. For reasons stated in the opinion, it is held, that it was proper to include both tax sale certificates in the notice of expiration of the period of redemption, and to include in the amount that would be required to be paid to effect a redemption the amount due upon each of such certificates.

J. K. Murray, of Bismarck, for appellant.

Simpson, Mackoff, & Kellogg, of Dickinson, for respondent.

Alvin C. Strutz, Atty. Gen., P. O. Sathre, Asst. Atty. Gen., B. A. Dickinson, Asst. State's Atty., of Minot, Ralph F. Croal, State's Atty., of Fargo, and Earl P. Walter, State's Atty., of Bowbells, and W. H. Stutsman, of Mandan, amici curiae.

CHRISTIANSON, Judge.

The plaintiff brought this action to determine adverse claims to certain land in Stark County in this state. In the complaint, it is alleged that the plaintiff is the owner in fee simple of the tract in question. The defendant answered alleging that the land was sold on December 10, 1935, for the nonpayment of taxes for the year 1934, at the sale appointed by law to be held for the sale of such lands; that at such sale the premises were bid in by Stark County; that thereafter, Notice of Expiration of Period of Redemption was duly given, as required by law, but that no redemption was made, and that thereupon on November 18, 1940, a tax deed was duly issued to the county, and recorded in the office of the Register of Deeds of the county. That thereafter said Stark County, at a sale held according to law, sold said premises to the defendant, John M. Miller.

It is further alleged that if the plaintiff acquired or has a deed to the lands in question, that the same was acquired by her after the former owner had been divested of title by the tax deed issued to the county.

Defendant asks judgment that the plaintiff be decreed to have no right, title, or interest in the land and that the defendant be decreed to be the owner thereof, subject to the interests of Stark County for payments still due on the purchase price.

The case was tried to the court without a jury and resulted in findings and judgment in favor of the defendant and the plaintiff has appealed.

The appellant has limited the questions sought to be reviewed on appeal to the sufficiency of the Notice of Expiration of Period of Redemption. In her brief, the plaintiff says that the notice is fatally defective in the following particulars:

‘1. The time when redemption expires is not stated definitely; date of redemption is vague and confusing.

‘2. The total amount specified in the Notice is much greater than the amount necessary to redeem; it includes an amount of Four Hundred Seventy-seven and 5/100ths Dollars ($477.05) to be paid for land which is not described in the Notice.’

3. That if the court holds there is land described in the notice ‘on which taxes are Four Hundred Seventy-seven and 5/100ths Dollars ($477.05) then same is void because no more than one year's taxes can be incorporated in any one Notice.’

These objections to the notice will be considered in the order stated.

(1). Our laws provided for two notices of Expiration of Period of Redemption on land sold to a county at tax sale. 1925 Supplement, Sec. 2202, Laws 1939, Ch. 235. One notice was required to be given (1) to the record title owner, (2) to the person in possession of the land, and (3) to mortgagees, lien holders and other persons interested in the land as may appear from the records of the Register of Deeds and Clerk of District Court for the county. Service of such notice was required to be made upon those to whom notice was required to be given in the manner prescribed by statute. 1925 Supplement, Sec. 2202, Laws 1939, Ch. 235, Subdv. (3). The other was a general notice as to all tracts of real estate, on which the Period of Redemption was about to expire. This notice was given by publication only in the official newspaper of the county. 1925 Supplement, Sec. 2202, Laws 1939, Ch. 235, Subdv. (4), (5). The notice, the sufficiency of which is challenged in this case, is the one required to be given to the record title owner. The original notice, which was offered in evidence, together with the proof of service, shows that the notice was issued May 13, 1940, and was served by registered mail as prescribed by statute by mailing on May 15, 1940.

The notice states that the real estate thereinafter described ‘was, at the tax sale held in this County on the 10 day of December, 1935, offered for sale for delinquent taxes against it for the year 1934 and was sold to the county, and subsequent tax sale certificates have been issued to the county for the years hereinafter set forth; that more than three years have expired from the date of each of said tax sale certificates, that no redemption has been made therefrom, and that the same are still the property of such county, and unless redemption is made from each of said tax sale certificates on or before the first day of October, after the date of this notice appearing above my signature, tax deed will be issued to the county, granting to and vesting in it absolute title in fee to said real property, and foreclosing all rights of redemption, and any and all other rights of the owner and of all mortgagees and lien holders and other persons interested therein as may appear from the records of the Register of Deeds and Clerk of the District Court of said county, except the right of redemption granted by Chapter 238, S.L.1939.’

The statute relating to such Notice of Expiration of Period of Redemption says that the notice ‘shall contain the information indicated in the following form and may be substantially in the following form.’ The form of notice set forth in the statute did not contain the last clause in the above quoted portion of the notice that was given in this case; that is, the form of notice as given in the statute did not contain the clause ‘except the right of redemption granted by Chapter 238, S.L.1939.’

It is the claim of the appellant that the addition of this clause rendered the notice uncertain and indefinite as to the time within which redemption must be made and hence, the notice was void.

Chapter 238, Laws 1939, to which reference is made in the notice, was entitled: ‘An act providing for the redemption of real estate forfeited to the county for delinquent taxes by former owners, prescribing the conditions therefor, providing for the re-purchase of real estate forfeited to the county for delinquent taxes on contract for deed, prescribing the terms therefor, and declaring an emergency.’

Section 1 of the act provides: ‘Any real estate heretofore or hereafter forfeited to the county under tax deed proceedings, shall be subject to redemption by the owner whose title was forfeited, or his successor in interest, at any time while the tax title thereto remains in such county and prior to re-sale, upon the payment of the amount which would have been required to effect a redemption had no tax deed been issued thereon, plus interest at the rate of four (4%) per cent per annum, from the date of the execution of such tax deed; provided that such right of redemption shall not interfere with the existing right of the county to re-sell real estate acquired by tax deed at any time as otherwise provided by law. Where a redemption is made under this act, the county auditor shall execute a quit claim deed in behalf of the county for such real estate to the person making such redemption.’

Subsequent provisions in the act empower the board of county commissioners ‘to enter into a contract for deed for the re-sale to the former owner, or his successor in interest, of any real estate which had been forfeited to the county on tax deed proceedings.’

The notice here left no doubt as to the time the period of redemption would expire, or what the result would be if redemption were not made within the time specified. The notice stated that ‘unless redemption is made from each of said tax sale certificates on or before the first day of October, after the date of this notice appearing above my signature, tax deed will be issued to the county, granting to and vesting in it absolute title in fee to said real property, and foreclosing all rights of redemption, and any and all other rights...