McHenry v. Kidder County

• Decision Date: 20 May 1899
• Citation: 79 N.W. 875,8 N.D. 413
• Court: North Dakota Supreme Court

79 N.W. 875

8 N.D. 413

EDWIN C. MCHENRY, et al. v. KIDDER COUNTY, N. D

Supreme Court of North Dakota

May 20, 1899

Appeal from District Court, Kidder County; Winchester, J.

Suit by Edwin H. McHenry and Frank G. Bigelow, receivers of the Northern Pacific Railroad Company, against the County of Kidder and the State of North Dakota.Judgment for plaintiffs, and defendants appeal.

Affirmed.

Charles H. Stanley(Fred A. Baker, of counsel), for appellants.James B. Kerr, for respondents.

OPINION

WALLIN, J.

This is an action to quiet title, brought by the receivers of the Northern Pacific Railroad Company against the County of Kidder and the State of North Dakota.In their complaint the plaintiffs allege their ownership in fee, as such receivers of certain lands in Kidder county, described in the complaint, which lands are conceded to be a part of the land grant of said railroad company.The complaint alleges "that the said defendants, the State of North Dakota and County of Kidder, North Dakota, claim some title or interest in or lien upon said lands adverse to these plaintiffs, that the claims of the said defendants are without any right whatever, and that said defendants have no right, title interest, or lien in or to or upon the said described lands or any of them."The complaint demands that the defendants be required to set forth the nature of their claims, to the end that such claims may be determined by the court, and, finally, that the court shall adjudge that the defendants have no interest, title, right, lien, or lawful claim in or to the said lands, or any of them, and that the plaintiffs' title to said lands be adjudged valid.To this complaint the defendants answered, admitting, in effect, that the lands in question were a part of the land grant of said railroad company, and that the plaintiffs, as such receivers, owned said lands in fee simple, unless the defendants owned the same by virtue of the tax proceedings, which are set out in the answer; and all of the defendants' claims to said lands are based exclusively upon such tax proceedings.The answer alleges the regular levy of territorial, state, county, township, and school district taxes against the lands described in the complaint for the years 1889, 1892, 1894, 1895, and 1896, and that said taxes have not been paid.Said answer further alleges title to and ownership of said lands in the State of North Dakota, and bases such title and ownership upon a tax sale thereof, which tax sale is set out as follows in the answer: "That in the year 1895 the lands in question in this suit, and all other lands in said county on which the taxes for 1889 and 1894 had not been paid, were regularly sold at a tax sale in said County of Kidder for the taxes of 1889 and 1894, and the lands in question in this suit were regularly bid in by the State of North Dakota, and the state now holds the title so acquired in trust for itself and for the County of Kidder, and, for the several civil townships and school townships or districts of said county."The defendants claim that the facts averred in their answer, which we have above epitomized, constitute a proper counterclaim in this action, and upon that assumption the defendants demand affirmative relief against the plaintiffs as follows: "(1) That the said taxes levied in the years 1889, 1892, 1894, 1895, and 1896 be decreed to be a valid and perpetual lien and charge upon the lands in the suit.(2) That the taxes levied in 1889, 1892, and 1894 against the lands be adjudged and declared to be valid delinquent taxes, for which said lands are subject to sale under and in pursuance to an act entitled 'An act to enforce the payment of taxes which became delinquent in and prior to the year 1895.'[Laws 1897, p. 76](3) That said taxes levied in 1895 and 1896 against said lands be declared to be good and valid taxes, and good and valid delinquent taxes, for which said lands are subject to sale under an act entitled 'An act prescribing the mode of making assessments of property,' etc., approved March 8, 1897; also, that said taxes of 1895 and 1896 be declared to be valid subsequent taxes within the meaning of sections 18,19, and20 of the act relating to the enforcement of delinquent taxes, referred to in paragraph 2 of the prayer for relief."Section 4 of the prayer is in the following language: "That the said taxes for the years 1889, 1892, 1894, 1895, and 1896, and the penalty and interest thereon, may be declared and decreed to constitute a lien upon the said several parcels of land in the nature of a mortgage lien, and that foreclosure of the same may be had by a sale of the lands in the same manner and form as a mortgage lien may be foreclosed under the statutes of the State of North Dakota and the rules and practice of this Court; all the statutory rights and privileges of the plaintiffs as taxpayers being preserved to them."Section 5 asks that the said taxes may be decreed to be a first lien and charge upon moneys in the hands of said receivers.This is followed by a prayer for general relief.To this answer the plaintiffs interposed a general demurrer for insufficiency, and the trial court, after hearing counsel upon the issues raised by the demurrer, sustained such demurrer, and by its order directed that judgment be entered in favor of the plaintiffs, adjudging said plaintiffs to be the owners of the lands described in the complaint, free from any right, title, estate, or interest in said defendants, or either of them, and free from any lien arising by virtue of any tax sale claimed on the part of the said defendants, or either of them.Judgment was entered pursuant to the terms of said order, and the defendants appeal therefrom to this Court.

In disposing of the various questions presented by the record it will be necessary to take up and settle a preliminary question of practice which counsel have discussed in their briefs.It is this: Is it the duty of this Court, in an action to quiet title, such as this, to consider and pass upon any lien which may be set out by answer, but which does not arise from, or in consequence of, any tax sale of the lands involved?The proper solution of this question involves a construction of section 5904 of the Revised Codes, in connection with section 79 of chapter 126 of the Laws of 1897.This Court has had occasion to hold, in an action brought under the provisions of section 5904, supra, that mere liens, as distinguished from adverse estates and interest in lands, cannot, in the absence of consent, be adjudicated.This holding was upon the theory that such an action is peculiar in its nature, and must be governed by the letter of the statute, which creates this form of action and distinguishes it from all other actions which may be instituted under the Codes of Procedure existing in this state.SeePower v. Bowdle, 3 N.D. 107, 54 N.W. 404, citingHooper v. Henry, 31 Minn. 264, 17 N.W. 476, andMitchell v. McFarland, 47 Minn. 535, 50 N.W. 610.And see, also, Buxton v. Sargent7 N.D. 503, 75 N.W. 811.In the case last cited this Court said: It is true that, when both of the litigants actually try in such an action a question of lien, the courts will not refuse to pass upon that question, but will, on the contrary, render judgment thereon the same as if it had been a proper issue in the case."In Power v. Bowdle the following language was used by the Court: "Where a defendant elects to have his own case determined in such action, and sets out the facts of his case, and asks judgment upon such facts, and the Court, without objection, pronounces judgment thereon upon the merits, it will then be too late for ...