Lee v. Crawford
| Decision Date | 21 November 1901 |
| Citation | 88 N.W. 97,10 N.D. 482 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County, Pollock, J.
Action by Arthur B. Lee against Ira Crawford. Judgment for defendant, and plaintiff appeals. Affirmed.
Affirmed.
Newman Spalding & Stambaugh, for appellant.
The issuance of the tax deed foreclosed all inquiry into the irregularities named, and such deed is conclusive evidence of the truth of all facts recited therein. Roberts v Bank, 8 N.D. 504. The tax sale created a contract between the territory and the purchaser, and the rights of the purchaser became fixed at the time of the sale. Roberts v. Bank, 8 N.D. 504. The only facts which are beyond legislative control are those over which such control is limited by the constitution. In re Van Antwerp, 56 N.Y. 265; Matter of Trustee, 31 N.Y. 584. All tax proceedings not removed from legislative control by constitutional limitations are exclusively within legislative regulation. Smith v. Buffalo, 159 N.Y 432; Terrell v. Wheeler, 123 N.Y. 80. Legislative power within the territory of Dakota was vested in the Congress of the United States, Art. 4, § 3, U. S. Const., and the territorial legislature, under authority given it by congress, was competent to make tax sale certificates and tax deeds conclusive evidence of the regularity of tax proceedings exclusively with in legislative control. Roberts v. Bank, 8 N.D. 504. Defects and irregularities in tax proceedings which are jurisdictional can exist only as to those proceedings required by the constitution to be had in a particular mode. Ensign v. Barse, 107 N.Y. 329; Terrell v. Wheeler, 123 N.Y. 76; People v. Turner, 145 N.Y. 457; Van De Venter v. Long Island, 139 N.Y. 136. The listing of the property for assessment in the name of Crawford does not invalidate the sale. § 1544, Subd. 2, § § 1593, 1582, 1641, Comp. Laws; Iowa & Dakota Co., v. Barnes County, 6 N.D. 601; Tyler v. Cass County, 1 N.D. 395. The assessments and levy being valid, all provisions of the statute providing the mode and manner of enforcing or collecting the tax are directory. § 1639, Comp. Laws; Smith v. Cleveland, 17 Wis. 573; Pillow v. Roberts, 13 How. (U. S.) 472. The constitution of the state was not in force at the time of the sale in this case. Its subsequent adoption could not alter the contract of the parties. Railroad Co. v. McClure, 10 Wall. 511, 19 L.Ed. 997; Ohio Ins. Co. v. Dilvett, 14 L.Ed. 1002; New Orleans Gas Light Co. v. Louisiana Co., 115 U.S. 650, 29 L.Ed. 516. Appellant claims title under the act of the territorial legislature ( § § 1638 and 1639, Comp. Laws), passed under authority derived from congress of the United States. The decision of this court can be reviewed by the Supreme Court of the United States in this case. § 709, U. S. Rev. St. The Federal decisions, therefore, are controlling. Carson v. Dunham, 121 U.S. 421, 30 L.Ed. 995; Cook v. Avery, 147 U.S. 375, 37 L.Ed. 212; Shevely v. Bowlby, 152 U.S. 1; Bank v. Yankton, 101 U.S. 129, 25 L.Ed. 1046. The title of plaintiff is based solely upon the acts of the territorial legislature which had authority under the acts of congress, to adopt the statutes under which, and under the operation of which, appellant's title originated, and under which he claims. Bank v. Yankton, 101 U.S. 129; Murphy v. Ramsey, 114 U.S. 15; State Corporation v. United States, 136 U.S. 1; Benner v. Porter, 9 How. 235; Insurance Co. v. Cotton, 1 Peters 511; United States v. Gratiot, 14 Peters 511. The acts of the territorial legislature were the acts of the government of the United States subject to be altered or repealed by congress, and must therefore be considered as acts of congress. Bank v. Yankton, 101 U.S. 129. Congress might, by legislative enactment, have fixed the value of all lands in the territory for the purpose of taxation. It might have disposed of any of the proceedings complained of in this action. Neither was jurisdictional or required by the constitution of the United States. Ramsey v. R. L. Lewis Co., 85 N.W. 211; Cooley on Taxation, (2 Ed.) 344.
J. E. Robinson, for respondent.
The appellant failed to move for a new trial, and having failed to predicate error on the order denying a motion for a new trial this court should not review the evidence and appeal when the judgment presents no question of fact for review. Pierce v. Manning, 2 S.D. 517; Murphy v. Bank, 83 N.W. 575; Plow Co. v. Bellon, 4 S.D. 384; Carson v. Funk, 27 Kan. 524; Struthers v. Fuller, 45 Kan. 735; Evenson v. Webster, 3 S.D. 382. Appellant claims under a deed based on a sale for the tax of 1888. The sale was made for an excessive amount. It was made under § § 1621 and 1622, Comp. Laws, which authorized the sale only for the amount due. The statutory power to sell for lawful taxes, if exceeded by including unlawful items, renders the sale void from the manifest impossibility of saving the sale in part when the invalidity extends to the whole. Cooley on Taxation, 497; Baker v. Supervisors, 39 Wis. 447; Mileage v. Coleman, 47 Wis. 184; Kimball v. Ballard, 19 Wis. 634; Barden v. Supervisors, 33 Wis. 447; Harper v. Rowe, 53 Cal. 233; Wills v. Austin, 53 Cal. 152; Fredweld v. Peterson, 51 Cal. 637; Case v. Dean, 16 Mich. 12; Riverside v. Howell, 113 Ill. 259; Gage v. Plumpelly, 115 U.S. 462. The land was not assessed in the name of the owner, and it was not assessed to unknown owners, hence the pretended assessment was void. Sweigle v. Gates, 84 N.W. 481, 9 N.D. 538. The assessment was not verified. § 1551, Comp. Laws. An affidavit must appear on its face to have been taken in compliance with the legal requisites. Without a venue an affidavit is a nullity, though sworn to before an officer whose residence is mentioned in the jurat. Cook v. Statts, 18 Barb. 407; Lane v. Morse, 6 How. Prac. 394; Thompson v. Burhaus, 61 N.Y. 52; Ladow v. Groom, 1 Denio 429. In possessory actions between the holder of the tax title and the patent title, where the interests of private parties are involved, the rule of caveat emptor applies in all its strictness. Courts are careful that no man be deprived of his property through tax proceedings that are not in all respects in substantial compliance with the statutory requirements. Sweigle v. Gates, 9 N.D. 538, 84 N.W. 482; Farrington v. Insurance Co., 1 N.D. 119; March v. Supervisors, 42 Wis. 518; Gautzhausen v. Kachler, 42 Wis. 332; Morrill v. Taylor, 6 Neb. 236; Clark v. Crane, 5 Mich. 151, 71 Am. Dec. 776; Van Rensellaer v. Weltbeck, 7 N.Y. 401; Silsbee v. Stockle, 44 Mich. 461; Dickenson v. Reynolds, 48 Mich. 158; Brevoort v. Brooklyn, 89 N.Y. 128; McClure v. Warner, 16 Neb. 448; Plummer v. Marathon County, 46 Wis. 179; People v. Giles, 68 N.Y. 326. The assessment is defective because it does not show the year for which it was made. § 1582, Comp. Laws. The sale is void because the land was not described on the tax list sufficiently. Power v. Bowdle, 3 N.D. 107; Power v. Larabee, 2 N.D. 141; Hegar v. DeGroat, 3 N.D. 354. The sale was made without a tax warrant. § 1596, Comp. Laws; Cooley on Taxation, 424. There is no evidence that the land was ever advertised for sale. The burden of making such proof was on plaintiff. The tax deed lost its character as evidence when it appeared that in an essential particular the tax proceedings on which it depended were irregular. O'Neil v. Tyler, 3 N.D. 47; Lacey v. Dows, 4 Mich. 140; Case v. Dean, 16 Mich. 12; Cooper v. Sheperdson, 51 Cal. 209; Bidleman v. Brooks, 28 Cal. 75; Thompson v. Ware, 43 Ia. 453; State v. Tax Cases, 15 Wall. 306; French v. Edwards, 13 Wall. 514; Blackwell on Tax Titles, 83; 2 Desty on Taxation, 961, 969; Johnson v. Elwood, 53 N.Y. 431.
This action is brought to recover the possession of land situated in the town of Berlin, in Cass county, described as follows: "The southwest quarter of the southeast quarter of section 32, in township 141, of range 50. The complaint states that the plaintiff is the fee-simple owner of the land, that the defendant is unlawfully in possession thereof, and that he unlawfully withholds such possession from the plaintiff. The answer denies the plaintiff's allegation of ownership, and alleges, as a counter claim, that the defendant owns the land in fee simple; and defendant demands, as affirmative relief, that the title be quieted in the defendant. Plaintiff, by way of reply, denies the allegations of the answer, and alleges that the defendant is barred by the statute of limitations from asserting any defense against the plaintiff's title. Defendant offered no evidence of title, but it is conceded that the defendant was in possession of the land when the action was commenced, and had been in possession for cropping purposes for several years before the suit was instituted. It appears, also, that the land was assessed in 1888 in the name of the defendant, and had been so assessed for several years prior to 1888. The plaintiff's title depends solely upon a tax deed which was delivered to plaintiff's grantor by the county treasurer of Cass county. The deed was put in evidence by the plaintiff, and it bears date January 15, 1892, and was recorded on February 8, 1892. The deed purports to be based upon a tax sale made in 1889 for the taxes assessed against the land in 1888. Plaintiff rested his case after putting the tax deed in evidence together with a deed of quitclaim from plaintiff's grantor to the plaintiff.
The sole contention arises upon the validity of the tax deed. At the trial defendant sought to impeach the tax deed as evidence of title in the plaintiff, and for this purpose defendant put in evidence certain records connected with the assessment and sale of the land for the taxes of 1888. The assessor's return for the ...
To continue reading
Request your trial