Mueller v. Mercer County

• Decision Date: 30 October 1953
• Docket Number: No. 7377,7377
• Citation: 60 N.W.2d 678
• Parties: MUELLER v. MERCER COUNTY et al.
• Court: North Dakota Supreme Court

Page 678

60 N.W.2d 678

MUELLER v. MERCER COUNTY et al.

No. 7377.

Supreme Court of North Dakota.

Oct. 30, 1953.

Rehearing Denied Nov. 19, 1953.

Syllabus by the Court.

1. Sec. 32-1701, NDRC 1943 provides for a statutory action to determine adverse claims and remove clouds on title. If affords such relief as is prescribed within the scope of the statute. The scope of that relief is not diminished by the fact that other relief may be available in the form of an appeal from administrative action.

2. The presumption is that a tax is valid and that presumption necessarily extends to every act upon which the tax in any measure depends. The burden of proof is on the one who attacks the validity of a tax.

3. It is not the policy of the law to permit persons to escape taxation through an omission by the assessor to include property in assessment. To avoid that result, courts will give liberal construction to the law which provides for the correction of any such error.

4. Sec. 57-1401, NDRC 1943 provides that when any taxable real property has been omitted 'in whole or in part' in the assessment of any year or years the county auditor shall proceed to correct such error and add such omitted property to the assessment rolls.

5. Real property for purposes of taxation is composed of two component parts, the land and the improvements and structures thereon. Sec. 57-0204, NDRC 1943. Each part is valued separately and the aggregate valuation assessed against real estate. Sec. 57-0227, NDRC 1943.

6. When the improvements on a lot are omitted by the assessor in determining the aggregate valuation of the lot on which they are located it is the duty of the county auditor to add such omitted part to the assessment rolls, and assess it at its full value. Sec. 57-1401, NDRC 1943 T. A. Sailer, State's Atty., John A. Richardson, Asst. State's Atty., Hazen, and C. E. Brace, Asst. Atty. Gen., for appellant.

W. H. Esterly, Beulah, for respondent.

GRIMSON, Judge.

Plaintiff brought this action to quiet title to the South twenty-five (25) feet of Lot Five (5) and all of Lot Six (6) in Block Forty-five (45) of the City of Hazen, County of Mercer and State of North Dakota. The complaint is in the statutory form. Plaintiff is the owner of said lots and her residence is located thereon. Defendant, Mercer County, claims a lien on said lots for some unpaid 1947 and 1948 taxes based on the assessment by the county auditor of the residence on said lots claimed to have been omitted by the assessor. The plaintiff seeks to set aside the lien of said taxes. No other defendant answered.

At the close of the case defendant moved for a dismissal on the ground 'That the plaintiff is attempting to invoke equity powers where they have an adequate remedy at law. In view of that the court does not have jurisdiction.' The motion was denied. The court then found for the plaintiff quieting title in her and setting aside defendant's tax lien. Defendant appeals and asks for a trial de novo.

Defendant contends, first, that plaintiff had a complete remedy at law by appeal from the decision of the board of county commissioners, reviewing and equalizing and confirming the assessment of said residence by the county auditor, and had no right, therefore, to come into a court of equity to quiet title against the lien of these taxes.

Granting that the plaintiff had a right to appeal from any decision of the board of county commissioners, Sec. 11-1139, NDRC 1943, the question is whether that bars the plaintiff from the use of the statutory action to quiet title.

Under the common law resort was had to the chancery courts to avoid multiplicity of suits and to remove clouds upon title in order to prevent future litigation. The grounds upon which the chancery courts obtained jurisdiction were the equitable considerations that the prevention of litigation and the protection of the true title and possession were promotive of right and justice. This procedure developed into the statutory action to quiet title. Such statutes greatly enlarged the jurisdiction of the equity courts over that possessed by the chancery courts.

'In many of the states statutes have been enacted which greatly enlarge the jurisdiction of the courts in actions to remove cloud or quiet title, and generally permit actions to be brought to determine any adverse claim, interest, or estate in lands. Such statutes are designed to afford an easy and expeditious mode of quieting title to real estate. This result is secured by enlarging the power of the court to determine adverse claims to land and to quiet the title thereto in cases where, by the strict rules of a court of equity, suit is not maintainable.' 44 Am.Jur., Quieting Title, Sec. 5, p. 6.

'In many jurisdictions statutes have been enacted authorizing actions to be maintained for the determination of adverse claims and to quiet title. An action under statute to compel the determination of an adverse claim to realty is in its nature one to quiet plaintiff's title to the property and to remove any cloud thereon. The action may be maintained independently of the common-law right to remove a cloud on the title by a bill in equity * * *.' 74 C.J.S. Quieting Title, Sec. 6, p. 14. See also Anderson v. Whipple, 71 Idaho 112, 227 P.2d 351; McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 51 A.L.R. 743.

In Quintana v. Vigil, 46 N.M. 200, 125 P.2d 711, 715, it is said:

'Equity has an enlarged jurisdiction by virtue of our statute to try a suit to quiet title even though admittedly there is an adequate remedy at law * * *.'

A New Mexico statute, Sec. 4387, N.M. Statutes Codification 1915, p. 1258 reading: 'An action to determine and quiet the title of real property may be brought by any one having or claiming an interest therein whether in or out of possession of the same, against any person claiming title thereto', has been held to enlarge the jurisdiction of equity and authorize suits to quiet title whether there is adequate remedy at law or not. Knaebel v. Escudero, 32 N.M. 311, 255 P. 633.

Thus is indicated by the courts the wide range of jurisdiction given to the courts in the statutory action for determining adverse claims and removing clouds on titles to real estate.

Our original statute for determining adverse claims was Sec. 635, Chapter 29, Rev. Codes, Dakota 1877, p. 584. It was entitled 'Actions to Determine Conflicting Claims to Real Property' and provided: 'An action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim.' This statute was amended and broadened by Section 1, Chapter 5, NDSL 1901 and is now embodied in Sec. 32-1701, NDRC 1943, reading as follows:

'An action may be maintained by any person having an estate or an interest in, or lien or encumbrance upon, real property, whether in or out of possession thereof and whether such property is vacant or unoccupied, against any person claiming an estate or interest in, or lien or encumbrance upon, the same, for the purpose of determining such adverse estate, interest, lien, or encumbrance.'

This court has held that while the action is in the nature of an equitable action it should be considered as strictly a statutory action to determine adverse claims. Tracy v. Wheeler, 15 N.D. 248, 107 N.W. 68, 69, 6 L.R.A., N.S., 516.

In Shuttuck v. Smith, 6 N.D. 56, 69 N.W. 5, we hold that an action to determine adverse claims under this statute is a procedure independent of the common-law right to remove a cloud from the title by an ordinary action in equity.

In Sexton v. Sutherland, 37 N.D. 500, 164 N.W. 278, 280, we say:

'The statutory action to determine adverse claims was evidently designed as a substitute for the equitable action to quiet title and the common-law action to ejectment; but it is broader and more comprehensive than either of those actions.'

That the courts under this statute have jurisdiction to remove clouds arising from void taxation is held in many cases. 44 Am.Jur., Quieting Title, Sec. 12, p. 12. In Penton v. Brown-Crummer Inv. Co., 222 Ala. 155, 131 So. 14, 16, it is said:

'It is well settled that courts of equity have jurisdiction and will intervene, at the insistence of the owner of real estate, to remove a cloud on his title arising from a void assessment for taxes or public improvement schemes, where the invalidity does not appear on the face of the proceedings, and extraneous evidence is required to develop the invalidity.' See also 4 Dil. Municipal Corp. (5th Ed.) Sec. 1590; 1 Pom.Eq.Juris.Secs. 259-270; High on Inj. Secs. 367, 368; Heywood v. City of Buffalo, 14 N.Y. 534; Ewing v. City of St. Louis, 5 Wall., U.S. 413, 18 L.Ed. 657.

In O'Neil v. Tyler, 3 N.D. 47, 53 N.W. 434, page 439, this court said:

'Plaintiff being in possession, and a cloud being cast upon his title by the tax deeds, an action would lie in equity to remove the cloud, and no court other than a court of equity could remove the cloud by a decree. * * * (Citations.)' See also Marshall Wells Co. v. Foster County, 59 N.D. 599, 231 N.W. 542; Northern Pacific Railway Co. v. Morton County, 32 N.D. 627, 156 N.W. 226, L.R.A.1916E, 404; Shuttuck v. Smith, 6 N.D. 56, 69 N.W. 5; Northwestern Improvement Co. v. Morton County, 78 N.D. 29, 47 N.W.2d 543.

By common consent that has been the practical interpretation given our statute by counsel and this court in the many actions to quiet title against clouds caused by allegedly void assessments. In many of those cases the question raised in this case of an appeal from the board of county commissioners when sitting as a Board of Review for the equalization of assessments has existed. The court has taken unchallenged jurisdiction irrespective thereof.

As thus construed the action to quiet title becomes purely a creation of statute and affords relief within the scope prescribed by the statute. The scope of that relief is not diminished by the fact...