Messer v. Henlein

• Citation: 4 N.W.2d 587,72 N.D. 63
• Decision Date: 13 June 1942
• Docket Number: No. 6742.,6742.
• Parties: MESSER v. HENLEIN et al.
• Court: United States State Supreme Court of North Dakota

72 N.D. 63
4 N.W.2d 587

MESSER
v.
HENLEIN et al.

No. 6742.

Supreme Court of North Dakota.

June 13, 1942.

Appeal from District Court, Stark County; Harvey J. Miller, Judge.

Action by Philip Messer against Eva Henlein, executrix, and others, to determine adverse claims to a tract of land. From an adverse judgment, A. R. Schatz appeals, and plaintiff moves to dismiss the appeal.

Motion to dismiss appeal denied, and judgment reversed and case remanded.

[4 N.W.2d 588]

Syllabus by the Court.

1. The making of an application by a party to an action for additional time within which to comply with an interlocutory judgment and an ineffectual attempt to comply therewith in order to prevent the entry of a final judgment divesting him of title to property is not such an acquiescence in the final judgment, subsequently entered, as will constitute a waiver of his right to appeal therefrom.

2. Statute requiring notice of the expiration of the period of redemption from the sale of real property at tax sale must be strictly complied with before a valid tax deed can issue.

3. Tax deed does not cut off right of redemption of a person who was entitled to notice of expiration of redemption and did not receive it.

4. The equitable maxim “he who seeks equity must do equity” does not, in an action to quiet title upon a tax deed, require the defendant to pay the amount of the unpaid taxes as a condition of asserting and proving that plaintiff's tax deed is void.

5. Part of Chapter 235, Laws of N.D.1939, set forth in the opinion, is construed and held to be an application of the equitable maxim that “he who seeks equity must do equity.”

Joseph Coghlan, of Bismarck, for defendant and appellant.

Otto Thress, of Dickinson, for plaintiff and respondent.

BURKE, Judge.

Plaintiff brought this action to determine adverse claims to a tract of land in Stark County. The complaint is in the statutory form. The defendant Schatz answered alleging a title superior to that of the plaintiff. Plaintiff's claim of title was based upon a deed from Stark County which in turn rested upon a tax deed to the County. The answering defendant's claim arose upon a contract for deed from the owner of the record title. The evidence taken at the trial disclosed that the defendant Schatz made his contract for the purchase of the property in 1925; that at that time he entered into possession of the land and has ever since been in continuous possession thereof and that no notice of expiration of redemption from the sale of said land at tax sale was ever served upon him. The trial court entered an interlocutory judgment declaring the tax deed of the premises to Stark County to be null and void but nevertheless requiring the defendant to pay to the plaintiff the amount of money he had paid the county for the property, within fifteen days after notice of entry of the judgment and providing that in the event of the defendant's failure to make such payment, final judgment should be entered quieting title to said premises in the plaintiff. Thereafter the time within which the defendant might perform the conditions of this judgment was extended upon defendant's application. Despite the extension, defendant failed to make the required payment, and final judgment was entered quieting title to the land in the plaintiff. Defendant appealed from that judgment and demanded a trial de novo in this court.

Plaintiff has moved to dismiss the appeal upon the ground that defendant's application for an extension of time to comply with the interlocutory judgment constituted an acquiescence therein and also in the final judgment which was entered in accordance with its terms. Before entering upon a consideration of the merits we shall first dispose of this motion.

As a general rule acquiescence in a judgment is a waiver of the right to

[4 N.W.2d 589]

appeal therefrom. 4 C.J.S., Appeal and Error, § 212, p. 396. However, in order to constitute an estoppel or waiver of the right to appeal from a judgment, a party's “acquiescence therein must have been unqualified, and the benefits received by him as a basis for estoppel must have been substantial.” Willbur v. Johnson, 32 N.D. 314, 155 N.W. 671, 672. See Tyler v. Shea, 4 N.D. 377, 61 N.W. 468,50 Am.St.Rep. 660;Williams v. Williams, 6 N.D. 269, 69 N.W. 47;Tuttle v. Tuttle, 19 N.D. 748, 124 N.W. 429. In this case defendant's act, which plaintiff claims constitutes an estoppel or waiver, was merely...