Mund v. Rambough

• Decision Date: 10 November 1988
• Docket Number: No. 880072,880072
• Citation: 432 N.W.2d 50
• Parties: Ervin MUND, Jerome Voegele and Dr. Louis Tepoel, Plaintiffs and Appellees, v. Helen A. RAMBOUGH, Defendant and Appellant, and The State of North Dakota and all persons unknown claiming any estate or interest in, or lien or encumbrance upon the property described in the Complaint, Defendants. Civ.
• Court: North Dakota Supreme Court

Page 50

432 N.W.2d 50

Ervin MUND, Jerome Voegele and Dr. Louis Tepoel, Plaintiffs and Appellees, v. Helen A. RAMBOUGH, Defendant and Appellant and The State of North Dakota and all persons unknown claiming any estate or interest in, or lien or encumbrance upon the property described in the Complaint, Defendants.

Civ. No. 880072.

Supreme Court of North Dakota.

Nov. 10, 1988.

Vogel Law Firm, Mandan, for defendant and appellant; argued by Colette N. Bruggman.

Lucas & Smith, Bismarck, for plaintiffs and appellees; argued by Sheldon A. Smith.

Thomas B. Tudor, Bank of North Dakota, Bismarck, for defendants. No appearance.

ERICKSTAD, Chief Justice.

The plaintiffs initiated this action to quiet title to real property in Burleigh County. Helen Rambough claimed an interest in the property as the previous owner. The district court granted the plaintiffs' motion for partial summary judgment and Helen appeals. We reverse in part and remand.

The land in question was purchased by Dale and Helen Rambough of Braddock, North Dakota, in 1940 at a sheriff's sale. They bought a total of 640 acres split into four parcels located in Burleigh County. They farmed the land until 1972 when it was leased to their son, Rassen Rambough, on a one-fourth to the owner, three-fourths to renter, crop share basis. Dale passed away in 1978, and Helen is now dependent on the crop share income and a social security check for her support. Helen paid the taxes on the land until the year 1980 when Rassen paid the taxes. Helen assumed Rassen would continue to pay the taxes in subsequent years while Rassen assumed his mother would pay the taxes. As a result of this misunderstanding, the taxes became delinquent in 1981.

On December 13, 1982, the Burleigh County Auditor's Office issued a county certificate of sale for taxes to Burleigh County for each of the four parcels of land, in the amount of the delinquent taxes. Unless the land was redeemed in the manner provided for by law, after three years the auditor's office would issue a deed to the county. ¹

Helen did not redeem the property, and in late May of 1986, the Burleigh County Auditor's Office sent a notice of expiration of the period of redemption for each parcel of land to both Helen Rambough at Braddock, North Dakota, and to the Bank of North Dakota which was mortgagee in connection with a mortgage on the property. Helen was out of the state visiting family, and, as arranged, Rassen regularly picked up her mail at the post office. On the day the notices were received, Rassen's daughter, Audrey, appeared at the Braddock post office, and signed for the notices which had been sent by certified mail to Helen Rambough, return receipt requested. Apparently without opening the envelopes or notifying her grandmother, who is visually handicapped as a result of cataracts and deteriorating retinas, Audrey took the notices to her grandmother's home and placed them on the kitchen table along with the rest of the mail.

When no response was made to the notices of expiration of the period of redemption, the Burleigh County Auditor's Office issued tax deeds to the county on October 15, 1986. Burleigh County, at a tax sale on November 18, 1986, then sold the land, four parcels in all, in Township 137 North of Range 75 West in Burleigh County, to Ervin Mund, Jerome Voegele, and Dr. Louis TePoel (plaintiffs). The Northwest Quarter (NW 1/4) of Section Twenty-Five (25), on which taxes, interest, and penalties were due in the amount of $1,541.06, was sold for $4,200.00. Land described as the North Half of the Northeast Quarter (N 1/2NE 1/4), the Southeast Quarter of the Northeast Quarter (SE 1/4NE 1/4), and the Northeast Quarter of the Southeast Quarter (NE 1/4SE 1/4) of Section Twenty-Six (26), on which taxes of $1,573.97 were due, was sold for $3,100.00. The Southeast Quarter (SE 1/4) of Section Twenty-Five (25), on which taxes were due in the amount of $1,469.52, was sold for $4,400.00. These lands were bought by Mund and Voegele. TePoel bought the Southwest Quarter (SW 1/4) of Section Twenty-Five (25), on which taxes were due in the amount of $1,484.61, for $3,500.00. The total sum of the delinquent taxes, plus interest and penalties, was $6,069.16. The total purchase price for the 640 acres amounted to $15,200.00. Mund and Voegele brought this action to quiet title to the land in them and TePoel was later added as a plaintiff by stipulation. Helen answered and counterclaimed, claiming an interest in the property by virtue of the fact that she was the previous owner and had not received proper notice. The district court granted the plaintiffs' motion for partial summary judgment and Helen brought this appeal.

On appeal, Helen asserts:

The district court erred in granting plaintiffs' motion for summary judgment as there existed the following material questions of fact concerning the following:

1. Whether or not Helen Rambough received notice of the expiration of the period of redemption; and

2. Whether or not the Burleigh County Auditor's Office actually deposited in the United States mail letters containing Notices of Expiration of Period of Redemption to Helen Rambough.

Additionally, Helen contends:

Sections 57-28-04 and 57-27-02 of the North Dakota Century Code do not meet the requirements of Equal Protection and Due Process as guaranteed by the State and Federal Constitutions.

Summary judgment is a procedural device available for promptly and expeditiously disposing of a controversy without a trial if there is no dispute as to either the material facts or the inferences to be drawn from the undisputed facts, or whenever only a question of law is involved. Williston Co-op. Credit Union v. Fossum, 427 N.W.2d 804, 806 (N.D.1988) (citing Umpleby By And Through Umpleby v. State, 347 N.W.2d 156 (N.D.1984)). On appeal from a summary judgment we view the evidence in the light most favorable to the party against whom the summary judgment was granted. Id.

Helen claims that there are material issues of fact as to whether or not she received proper notices from the Burleigh County Auditor's Office of the expiration of the periods of redemption. She maintains that she had no actual notice of the expiration of the period of redemption and did not realize that her land would be sold for nonpayment of taxes or that it had been sold until she was notified by a neighbor shortly after the sale. Helen did not sign the receipt required to be signed in conjunction with receipt of registered mail; it was instead signed by her granddaughter, and Helen now contends that this is one factor which caused the notice to be improper. Helen also claims that the discrepancy between the date on the affidavits of service and the dates the notices were actually mailed results in a statutory violation by the county auditor and gives rise to a question of fact as to when the notices were actually mailed.

The general rule is that in the absence of custom, express contract or statute, notice sought to be served by mail is not effective until it is received by the one sought to be served. General Factors, Inc. v. Beck, 99 Ariz. 337, 409 P.2d 40, 43 (1966); Boeck v. State Highway Commission, 36 Wis.2d 440, 153 N.W.2d 610 (1967) (in absence of statute, service of notice not effective until receipt). In North Dakota, where the county has acquired title to property after sale to it for delinquent taxes, section 57-28-04, N.D.C.C., provides for service of notice by registered or certified mail and states in relevant part:

"The county auditor shall serve the notice of the expiration of the period of redemption upon the owner of the record title of the real estate sold to the county for taxes.... Said notice shall be served by registered or certified mail, and a registry and return receipt shall be demanded and filed with proof of service."

In this state the right of redemption has been assiduously guarded. Griffeth v. Cass County, 244 N.W.2d 301, 304 (N.D.1976). Service of the notice of the expiration of the period of redemption in the form, substance and kind prescribed by statute is jurisdictional. Brink v. Curless, 209 N.W.2d 758, 767 (N.D.1973), overruled in other part by City of Bismarck v. Muhlhauser, 234 N.W.2d 1, 5 (N.D.1975). The requirements of the statute as to the service and proof of service of the notice required to terminate an owner's right to redeem from a tax sale are considered "mandatory, are construed strictly in favor of the owner and generally no presumptions with regard to proper service and return thereof will be indulged in." Wilke v. Merchants' State Bank of Richardton, 61 N.D. 351, 237 N.W. 810 at 812 (1931); 72 Am.Jur.2d Sec. 1019.

According to the Burleigh County Auditor's Office, all notices of expiration of periods of redemption were targeted for mailing on May 30, 1986, and the affidavits of service were so dated. Some notices, including the ones sent to Helen Rambough, were apparently delivered to the post office prior to May 30, causing a discrepancy in the date on the affidavit of service and the date the notice was actually mailed. Helen asserts that this discrepancy results in an improper service of the notices and is a violation of section 57-28-04, N.D.C.C., which requires proof of service. While we do not condone the practice of the Burleigh County Auditor's Office in predating affidavits of service, and thus putting the validity of such documents in question, we conclude that the discrepancies in the affidavits and actual mailing dates are not determinative of the issue here as there is no question in this case that the notices were actually and timely received at the Braddock post office. Helen does not contend that the notices were not mailed during the time period specified by statute. She merely asserts that they were not mailed on the dates the affiant claims they were mailed. This does not raise a question of material fact which precludes summary judgment.

It is the general rule...