McHenry v. Brett

• Decision Date: 13 November 1899
• Docket Number: 6731
• Citation: 81 N.W. 65,9 N.D. 68
• Court: North Dakota Supreme Court

81 N.W. 65

9 N.D. 68

EDWIN H. MCHENRY et al, v. WM. BRETT

No. 6731

Supreme Court of North Dakota

November 13, 1899

Appeal from District Court, LaMoure County; Glaspell, J

Action by Edwin H. McHenry and others, receivers of the Northern Pacific Railroad Company, against William Brett. Judgment for plaintiffs. Defendant appeals.

Affirmed.

C. W Davis and W. F. Mason, for appellant.

At the time of appellant's purchase at tax sale section 1643 Comp. Laws, was in full force and effect. The act of purchasing constituted a contract the obligation of which could not be impaired by subsequent legislation. Cooley on Tax'n, 2d Ed. 544-545; Fleming v. Roverud, 30 Minn. 273, 15 N.W. 119; State v. Foley, 30 Minn 350, 15 N.W. 375; Corbin v. Commis'rs, I McCrary, 521; St. Louis etc. R. Co. v Alexander, 49 Ark. 190, 4 S.W. 753; Morgan v Miami, 27 Kan. 89; Robinson v. Howe, 13 Wis. 341; State v. Hundhausen, 23 Wis. 508; State v. Fylpaa, 3 S.D. 586, 54 N.W. 599; Sturges v. Crowninshield, 4 Wheat. 122 and n., 4 L.Ed. 529; Von Baumbach v. Bade, 9 Wis. 559. Brett can recover for valid taxes paid by him subsequent to the sale, even though he cannot recover the taxes for which the sale was made. Merriam v. Hemple, 17 Neb. 345, 22 N.W. 775; Harber v. Sexton, 65 Ia. 212, 23 N.W. 635; Coonradt v. Myers, 31 Kan. 30, 2 P. 858.

James B. Kerr and J. B. McNamee, for respondents.

The taxes of 1888 were illegally assessed and Brett got nothing by his purchase of the land under sale of this year's tax. McHenry v. Alford, 168 U.S. 651, 18 S. C. Rep. 242. The appellant Brett could not and did not acquire any lien by virtue of his purchase at tax sale for the 1888 tax. There was no legal sale for taxes, therefore he does not come within the terms of §§ 1625 and 1635, Comp. Laws. The doctrine of subrogation is the foundation of the right which the various legislatures have seen fit to confer upon the purchaser at tax sales. Merriam v. Hemple, 22 N.W. 775; Merrill v. Wright, 59 N.W. 787; Stegeman v. Faulkner, 60 N.W. 319; Ledwich v. Connell, 66 N.W. 1108. The theory of the law is that the purchaser succeeds to the lien of the state. Crecelius v. Mann, 84 Ind. 147. The equitable doctrine of subrogation is never invoked in favor of a mere volunteer who discharges the debt or duty of another in the absence of an agreement or of some duty imposed upon him by law or contract or of some interest in the subject matter. 27 N.W. 538 and n.; 24 Am. & Eng. Enc. L. 284. Brett being a stranger to the title, a construction of the statute which would allow him to pay the taxes of 1889 and acquire rights thereby would be in effect a sale for taxes before delinquency and without notice. The court will hesitate to give this statute such a construction as will contemplate doing indirectly what the policy of the law would not permit to be done directly. Sprague v. Roverud, 26 N.W. 603; Barke v. Early, 33 N.W. 678; Roberts v. Deeds, 57 Ia. 320, 10 N.W. 740. The tax purchaser must succeed to the lien of the state or county before he acquires the right to pay subsequent taxes as against the owner. Thode v. Spafford, 65 Ia. 294, 17 N.W. 561; Everett v. Beebe, 37 Ia. 452; Early v. Whittingham, 43 Ia. 162; Barber v. Evans, 6 N.W. 49; Bronson v. McDougal, 7 S.W. 591; Simpson v. Edmiston, 23 W.Va. 679. The descriptions, in the 1889 assessment roll are insufficient. O' Neil v. Tyler, 3 N.D. 47; Power v. Larabee, 2 N.D. 141. In no event can penalties or interest be allowed. Wells County v. McHenry, 74 N.W. 241, 7 N.D. 246.

OPINION

BARTHOLOMEW, C. J.

For the purposes of the questions involved in this appeal, it may be said that the plaintiffs, as the receivers of the Northern Pacific Railroad Company, brought this action to cancel tax deeds upon certain lands situate in LaMoure county, in this state, which said lands formed a part of the place lands in the original grant of lands by congress to said railroad company, and which said lands the said County of LaMoure, by its proper officials, sold to the defendant, William Brett, at the tax sale in 1889, for the alleged taxes that had been assessed and levied thereon for the year 1888. Subsequently deeds were issued upon such sale to said defendant. It has been judicially determined that said lands were not subject to taxation by the county in said year. McHenry v. Alford, 168 U.S. 651, 18 S.Ct. 242, 42 L.Ed. 614; Wells Co. v. McHenry, 7 N.D. 246, 74 N.W. 241. This is conceded by said defendant, and the cancellation of said deeds is not now resisted. But the said defendant set forth in his answer, by way of counterclaim, that in January, 1890, he paid the taxes upon said lands that had been assessed and levied thereon for the year 1889, setting forth the amounts so paid; and he asks that judgment be rendered in his favor, and against plaintiffs, for the amounts so paid, with interest, penalties, and costs. It will thus appear that the single question presented for our determination is whether or not a party who purchases land at a tax sale for an unwarranted and void tax can pay subsequent valid taxes thereon, and recover from the owner the amount of the valid tax subsequently paid by him. The trial court held against the proposition, and defendant, Brett, appeals.

At the time of the sale in question, section 1643, Comp. Laws, was in force, which declares that, whenever an action is brought to set aside a tax deed, "the true and just amount of taxes due upon such property or by such person must be ascertained and judgment must be rendered and given therefor against the taxpayer." It is doubtless true, as contended by counsel, that whatever rights then accrued to the purchaser by virtue of said statute, and other then-existing statutes in pari materia, assumed the form of contract rights, and could not be destroyed by subsequent legislation. Roberts v. Bank, 8 N.D. 504, 79 N.W. 1049, and cases cited. Roberts 1626, Comp. Laws, contains this language: "The purchaser acquires the lien of the tax on the land and if he subsequently pay any taxes levied on the same whether levied for any year or years previous or subsequent to such sale, he shall have the same lien for them, and may add them to the amount paid by him in the purchase." And section 1635 declares that "the owner or occupant of any land sold for taxes" may redeem the same within a specified time by paying the amount for which the sale was made, with certain interest thereon, and all subsequent taxes paid, with the same rate of interest thereon. To support his position that under these provisions he is entitled to judgment for the amount paid on the 1889 taxes, appellant cites the case of Merriam v. Hemple, 17 Neb. 345, 22 N.W. 775. Perhaps this case in an authority for appellant. As it is reported, we are not entirely certain. There a sale was set aside, but the purchaser was allowed to recover for subsequent taxes paid. Whether the court regarded the sale as invalid by reason of irregularities, or because the tax upon which it was based was void, we are not clear. It is certain the court did not intend to hold that a sale under a void tax could transfer or create any lien, because the court say: "The trial court found that the sale for the taxes of 1871 was a void sale. Such was, perhaps, the fact. But that fact could not destroy the lien of the purchaser for the taxes paid by him at such sale, if the taxes were valid, and the sale void on account of the irregularities of the revenue officers above the assessor." The court immediately adds: "Neither could it destroy the lien for subsequent taxes legally levied, if the taxes for the year for which the real estate was sold were void." Abstractly, this latter statement is strictly correct. A sale under a void tax could not affect the lien of the county under subsequent valid taxes; but we could not hold, under our statutes, that a party having no lien whatever on the land to protect could voluntarily pay the subsequent taxes, and thereby acquire the lien of the county, and compel the property owner to accept him as tax collector. Appellant also cites Coonradt v Myers, 31 Kan. 30, 2 P. 858. But the question here involved was not raised or mentioned in that case. There the party whose tax title failed had paid subsequent taxes for eight years. The case turned on a three-years statute of limitations. The lower court only allowed a recovery for taxes paid within three years prior to the date of bringing suit. That was reversed, and some of the reasoning of the court supports appellant. The court places the recovery of subsequent taxes paid upon the same ground as recovery for improvements under the occupying claimant's act, and says, in effect, that nothing can be recovered by way of improvements until the claimant's title is declared defective; then the value of all improvements must be allowed. So, as to subsequent taxes paid, nothing can be...