McGee v. Stokes' Heirs at Law
| Decision Date | 06 March 1956 |
| Docket Number | No. 7553,7553 |
| Citation | 76 N.W.2d 145 |
| Parties | Ivan McGEE, Plaintiff and Respondent, v. The HEIRS at LAW, Legatees and Devisees of Samuel S. STOKES, Deceased; the Residuary Legatees and Devisees of Mark S. Stokes, Deceased; Olivet Congregational Church of Merriam Park, St. Paul, Minnesota, a religious corporation; Ella L. Bartlett, Mary Ella Hamilton, Fannie May Cady; the Heirs at Law, Legatees, and Devisees of Annie Maddock, Deceased, Lewis Maddock, W. M. Spellisy, Keith L. Rising, the Great Northern State Bank of St. Paul, Minnesota, a corporation, John Tellers, Jr., Sadie M. Steiner, Amy Fall Richardson, The Rickenbacker Motor Company, a corporation, The Citizens State Bank of Frazee, Minnesota, a corporation, Chesebro L. Smith, The Rindlaub Company, a corporation, Peter A. Chalmers, Isa Chalmers, Peter Allan Chalmers, Lois M. Braun, and all other persons unknown having or claiming any estate or interest in or lien or encumbrance upon the property described in the Complaint, Defendants, Appeal of Agnes TELLERS, Caspar Tellers, Kenneth Tellers, Gordon Tellers, Lois Tellers, and Phyllis Tellers, surviving heirs of John Tellers, Jr., for themselves and for the use and benefit of J. S. Martin, Intervenors and Appellants. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. A tax deed valid on its face constitutes color of title. A contract for deed valid on its face constitutes color of title from and after the execution of such contract. Chapter 276, 1951 Session Laws.
2. Where a notice of expiration of the period of redemption is issued by the county auditor upon a tax certificate acquired by the county at tax sale, the inclusion in a lump sum therein claimed to be due of taxes which have been delinquent for less than three years prior to the service of the notice, renders the notice invalid and tax deed issued thereon void.
3. Where tax title procedure taken by a county fails to terminate the title of the former owner the property upon his death descends to his heirs by operation of law and creates in them a tenancy in common.
4. The possession of Bowman County under tax deed valid on its face was not adverse to the former owner or his heirs, who by descent succeeded to the title of the real property involved in this action as tenants in common.
5. Since a county, under a tax deed valid on its face, does not hold adversely to the former owner or his heirs who succeed to the title, the provisions of Section 28-0122, NDRC 1943 are not applicable to the period that the county holds title as its provisions are inconsistent with the right to redeem or repurchase while the county holds title to the property.
6. Laches does not arise from delay or lapse of time alone, but party against whom laches in asserting title to realty is sought to be invoked must be actually or presumptively aware of his rights and must fail to assert them against the party who in good faith permitted his position to become so changed that he could not be restored to his former state. Mere increase in value of realty is not such change of position or status as to give rise to the application of laches.
7. An action for the enforcement of a mineral deed and an oil and gas lease which convey interests in real property, may be maintained in the name of the grantors and lessors for the use and benefit of the grantee and lessee when said instruments are violative of Section 12-1714, NDRC 1943.
8. An agreement of the owners of real property, the possession of which is in another, to sell mineral interests therein and an oil and gas lease covering the same, and which instruments are delivered to the purchaser, and which agreement provides that the purchaser restore the title of the property to the owners is neither a 'debt' nor a 'thing in action' under the terms of Section 12-1719, NDRC 1943.
9. A debt in its ordinary legal sense is an obligation arising out of contract, express or implied, which entitles the creditor unconditionally to receive from the debtor a sum of money which the debtor is under legal, equitable, or moral duty to pay without regard to a future contingency.
10. The term 'chose or thing in action' is one of comprehensive import. It includes infinite variety of contracts, covenants and promises which confer on one party a right to a personal chattel or a sum of money from another by action.
11. A rule of law permitting recovery under a champertous conveyance violative of Section 12-1714, NDRC 1943 in the name of the grantor for the use and benefit of the grantee is a determination that the enforcement thereof in such manner is not against public policy.
M. S. Byrne, Bowman, Hyland, Foster & Conmy, Bismarck, for intervenors and appellants.
John A. Amundson, Bowman, Mackoff, Kellogg, Muggli & Kirby, Dickinson, for plaintiff and respondent.
This is an action to quiet title, commenced on the 31st day of March 1953. It covers considerable land not involved in this appeal. The issues in this case involve only the South Half of the North Half (S 1/2 N 1/2) Section 21, Township 129 West of Range 105 North of the 5th P.M. The plaintiff purchased this and other real property from Bowman County, North Dakota, under a contract for deed, dated December 5, 1952. John Tellers, Jr., was named as a defendant in the action. The affidavit of publication shows that his legal residence was Cologne, Minnesota. He was deceased on November 5, 1941, and left as his sole surviving heirs, Agnes Tellers, also known as Agnes Schwartz Tellers, his widow, and Caspar Tellers, Kenneth Tellers, Gordon Tellers, Lois Tellers, and Phyllis Tellers, his children.
The issues in this action were decided in favor of the plaintiff and his title to the premises quieted under his contract for deed.
The defendant intervenors were substituted by court order as parties defendant in place of John Tellers, Jr., deceased. The defendant intervenors have appealed and demanded a trial de novo.
The pleadings are long and set forth a number of facts and contentions. We will not attempt at this time to summarize them but will discuss the facts and contentions advanced to bring out the determination of the issues thereby presented.
An analysis of the pleadings present for determination the following issues:
1. Did the tax title procedure taken and maintained by Bowman County covering the South Half of the North Half (S 1/2 N 1/2) of Section 21, Township 129 North of Range 105 West of the 5th P.M. result in a valid tax title to the premises?
2. Has Bowman County from the time it acquired tax title, March 1, 1940, and leased the premises to the plaintiff, held title adversely to the former owners?
3. Is the agreement entered into between Agnes Schwartz Tellers, the surviving spouse of John Tellers, Jr., Caspar Tellers, Kenneth Tellers and Agnes Tellers as guardian of the estates of Gordon, Phyllis and Lois Tellers, minor wards, and J. S. Martin, dated January 26, 1953, as modified, and the mineral deed and the oil and gas lease issued pursuant to that agreement, champertous and in violation of Sections 12-1714, 12-1716 and 12-1719, NDRC 1943 and contrary to public policy?
Pursuant to the sale of the 1928 delinquent taxes held on the 10th day of December, 1929, and after issuance of notice of expiration of the period of redemption, the State of North Dakota by the county auditor of Bowman County, issued a tax deed to Bowman County covering the premises involved in this action together with other real property on March 1, 1940. The deed was recorded the same day in the office of the register of deeds in Bowman County, North Dakota. On March 6, 1940, Bowman County entered into a pasture and grass lease with the plaintiff, Ivan McGee. On April 10, 1941, a ten year written lease was executed between the plaintiff and Bowman County. He obtained another ten year lease from Bowman County covering the premises on March 11, 1949. From and after the issuance of the auditor's tax deed Bowman County was in possession of the premises under its tenant Ivan McGee, the plaintiff in this action, until the sale of the premises to him under a contract for deed, dated December 5, 1952. He brought the action to quiet title as purchaser of the premises under this contract. The tax deed to Bowman County and the contract for deed to the plaintiff appear valid on their face. The plaintiff had both possession and prima facie an equitable interest in the premises.
When the plaintiff commenced this action on the 31st day of March 1953, Chapter 276 of the 1951 Session Laws was in force. It states that:
'A contract for deed shall constitute color of title within the meaning of this section from and after the execution of such contract.'
From and after the execution of the contract for deed the plaintiff had color of title. Chapter 276, 1951 Session Laws. See also Robertson v. Brown, 75 N.D. 109, 25 N.W.2d 781.
At the time of the tax forfeiture proceedings taken by Bowman County, John Tellers, Jr., was the record title owner and his place of residence was Cologne, Minnesota. Many defects in the tax title procedure are alleged and asserted by the defendant intervenors for themselves and for the use and benefit of J. S. Martin. We need, however, consider only one.
The notice of expiration of the period of redemption covering the South Half of the North Half (S 1/2 N 1/2) Section 21, Township 129 North of Range 105 West of the 5th P.M., was issued by the county auditor of Bowman County, North Dakota, on the 26th day of January 1939. A copy of the notice of expiration of the period of redemption was sent by registered mail to John Tellers, Jr., at Cologne, Minnesota, under date of January 28, 1939, and received by him on January 30, 1939.
The notice insofar as pertinent recited that the real estate was offered at tax sale held on the 10th day of December 1929, for delinquent taxes against it:
'that redemption has not been made...
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