McDonald v. Abraham
| Decision Date | 06 August 1947 |
| Docket Number | 7048. |
| Citation | 28 N.W.2d 582,75 N.D. 457 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Where the officer charged with the duty of giving notice of expiration of the period of redemption to delinquent taxpayers preliminary to the issuance of a tax deed follows the letter of the statute in so doing, the requirements as to the service of the notice are satisfied although the taxpayer does not receive such notice.
2. Where the affidavit of the county auditor making proof of service of the notice of expiration of the period of redemption and the jurat of the notary who swore him are contained on one page, and inadvertently the signature of the auditor is written on the line of the jurat designated for that of the notary, and the signature of the notary is written on the line at the foot of the affidavit designated for the auditor, the affidavit is not thereby rendered insufficient but evidence aliunde is admissible to show that in fact the auditor was duly sworn and his signature and that of the notary were inadvertently transposed.
3. Taxes, interest and penalties represented by tax sale certificates issued or deemed to have been issued within three years prior to notice of expiration of the period of redemption from tax sale may not be included in the amount stated in the notice as necessary to be paid in order to make redemption.
4. Where the statutory requirements prescribed for terminating the owner's right of redemption of land sold to the county at tax sale are followed, title passes to the county in the absence of redemption although no valid tax deed therefor is issued.
5. Where an issue is neither raised nor considered in the trial court it cannot thereafter be raised for the first time on appeal.
6. Under section 57-2604, N.D.R.C.1943, providing that 'Any minor * * * having an estate in or lien on land sold for taxes may redeem the same within three years after his disability ceases, but in such cases the right to redeem must be established in a suit for the purpose brought against the party holding title under (the) sale.' A minor may assert his right to redeem in an action brought against him to determine adverse claims.
7. The right of a minor to redeem pursuant to section 57-2604 supra, is not suspended during the period of his disability.
8. The right to redeem conferred by section 57-2604, supra extends only to such estate or interest in the land as the redemptioner actually owned.
Wm. L. Paulson, State's Atty., for Barnes County, and L. T. Sproul, both of Valley City, for appellants.
Roy A. Ployhar, of Valley City, for respondents.
Plaintiffs claiming title to the tract of land here involved, brought this statutory action to determine adverse claims. See section 32-1701, N.D.R.C.1943. The complaint is substantially in the statutory form. See section 37-1704. The defendant Abraham answered, denied the ownership of the plaintiffs alleged he was the owner of the land in question by virtue of a tax deed and, counterclaiming, demanded that plaintiff's cause of action be dismissed and that the title to the premises be quieted in him. The plaintiffs, replying, challenged the validity of the deed on which the defendant predicated his claim of title and ownership, asserted the right to redeem and, in that behalf, tendered the amount of the delinquent taxes and penalty, together with costs as required by the statute. The case was tried to the court and plaintiffs had judgment. Whereupon the defendants perfected the instant appeal and demanded a trial de novo here.
There is little dispute as to the facts. Plaintiffs, Rosemary Darylene McDonald, Bonabell Jean McDonald, and Jerry Charles McDonald, inherited the land from their grandfather. Bonabell and Jerry were minors. Their father was deceased and their mother, Gladys McDonald, was their general guardian. The decree of distribution which evidenced their ownership was issued out of the County Court of Cass County in August 1940, and filed for record in the office of the register of deeds of Barnes County at that time. The 1937 taxes had not been paid. The land was sold for these taxes in December, 1938. There being no other bidders a tax sale certificate was issued to Barnes County pursuant to the statute then in effect. Chapter 289, Session Laws 1931. In May 1942, the county initiated proceedings pursuant to the provisions of chapter 286, Session Laws 1941, see Chapter 57-28, N.D.R.C.1943, to procure a tax deed. Service of the notice of expiration of the period of redemption was made as required by the statute. There was no redemption and deed was issued to the county. Thereafter the land was appraised and sold at public auction to the defendant in December, 1942. Gladys McDonald was discharged as guardian in 1945 and the plaintiff F. W. Mees was appointed guardian ad litem for the minor plaintiffs, Bonabell Jean McDonald and Jerry Charles McDonald. The instant action was begun May 2, 1945.
Plaintiffs make no contention that the proceedings prior to the service of the notice of expiration of the period of redemption are in any way subject to challenge. They predicated their case in the district court on three propositions: (1) That there was no sufficient service of the notice of expiration of the period of redemption upon the plaintiffs or upon any one authorized to represent them, and that, in any event, there was no proof by proper affidavit of such service; (2) that the notice of expiration of the period of redemption was insufficient in that it did not include the amounts of all taxes required to be included therein; and (3) that the deed was issued in the name of the auditor of Barnes County to Barnes County instead of in the name of the state of North Dakota to Barnes County.
The requirements prescribed by the statute as to the service of notice of the expiration of the period of redemption must be strictly complied with. See Cota v. McDermott, 73 N.D. 459, 16 N.W.2d 54, 155 A.L.R. 1271, and authorities cited therein. Section 4 of Chapter 286, supra, see section 57-2804, N.D.R.C.1943, provides:
In the instant case, the auditor requested the certified lists from the register of deeds and the clerk of court as required by the statute. The request was complied with but no addresses were shown on the lists. In the absence of anything to the contrary we must presume no addresses appeared of record in the offices of these officials. See Buman v. Sturn, 73 N.D 561, 16 N.W.2d 837. In fact, the title of the plaintiffs was shown on the records of the office of register of deeds only by the decree of distribution. And this decree did not indicate the addresses of the plaintiffs to whom the land was thus distributed. The auditor, however, in an effort to ascertain their addresses went to the records of the county agent, and of the Agricultural Administration office, and those records showed the address of the plaintiffs and of their guardian, Gladys McDonald, to be Hunter, North Dakota, care of Nathan Collins; and that the tenant in possession of the land was Harold Warner whose post office address was Page, North Dakota. Accordingly, she sent notices by registered letter thus addressed to each of the plaintiffs and to Gladys McDonald; and to Harold Warner, tenant in possession, addressed to him at Page. She demanded return receipts for all these letters and paid the fees therefor. She later received the return receipts for the letters sent to Hunter, signed by Nathan Collins by his wife, Mrs. N. Collins, and for the letter sent to Page signed by the addressee, Harold Warner. It appeared at the trial that Nathan Collins was the brother of Gladys McDonald. In due course thereafter the auditor made proof by affidavit of the service of the notice of expiration of the period of redemption by the mailing of the registered letters containing such notice and filed the same, together with the registry and return receipts, as required by the statute, section 57-2804, supra. It is apparent that the auditor not only did all that the statute required of her, but, as an act of favor and grace, went beyond it and did all that it was reasonably possible for her to do in order that the plaintiffs might receive the notice. Where the officer charged with the duty of giving notice of expiration of the period of redemption to delinquent...
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