Murphy v. Wilson

• Decision Date: 14 July 1917
• Parties: MURPHY et al. v. WILSON et al.
• Court: North Dakota Supreme Court

37 N.D. 300

163 N.W. 820

MURPHY et al.

v.WILSON et al.

Supreme Court of North Dakota.

April 24, 1917.

On Petition for Rehearing, July 14, 1917.

Syllabus by the Court.

A tax deed is void on its face when it shows a sale of land in a manner not authorized by statute.

A judgment against one in an individual capacity is not a bar to a claim which is asserted by him in a representative capacity or as the successor in interest to a corporation which was not precluded by the original judgment.

Appeal from District Court, Logan County; W. L. Nuessle, Judge.

Action to quiet title by J. J. Murphy and others against Jones T. Wilson and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

See, also, 28 N. D. 519, 149 N. W. 957.Watson & Young and E. T. Conmy, all of Fargo, for appellants. Miller, Zuger & Tillotson, of Bismarck, and W. P. Costello, of Great Falls, Mont., for respondents.

ROBINSON, J.

This action is the second edition of a similar action commenced seven years ago to quiet title to a half section of land in Logan county. S. 1/2 23-134-73. The defendants own the patent title, and the plaintiffs claim under tax deeds which are void on their face and appeal to this court from a judgment against them. In August, 1912, the plaintiffs obtained a default judgment against the Wilsons and John R. Mulvane, to the effect that they have no estate or interest in, or lien or incumbrance upon, said property. The title to the property was in the corporation, and it served an answer claiming title, but during the protracted litigation it died and expired by lapse of time, and was succeeded by the parties that had made default. Then the plaintiffs moved to dismiss their action against the corporation, with a view of insisting on their default judgment against the other defendants. The case went to the Supreme Court (28 N. D. 521, 149 N. W. 957), and it was held that the default judgment was properly set aside, and that the motion for substitution of the trustees should have been granted and the action continued against them under new pleadings, and so the case was remanded.

[1] On June, 1916, judgment was duly entered, quieting title in the defendants, and the plaintiffs appealed to this court, demanding a review of the entire case. The review is short. The defendants have the patent title, and the claim of the plaintiffs is based on two tax deeds which are obviously void on their face. The tax deeds are dated January 30, 1906. One deed recites a sale made in December, 1902, for the taxes of 1901 of the S. W. 1/4 section 27, township 134, range 73, to W. C. Foster, for the sum of $10.99, being the amount of taxes, penalty, and costs charged against the land, and that the sale was made for the smallest or least quantity of the tract that would sell for the total amount of the taxes, penalty, and interest. The other tax deed was in all respects the same, only the tract described is S. E. 1/4 of the same section. As the sale was made in December, 1902, it was made under chapter 154, Laws 1901, which provides that at a tax sale each tract or lot shall be offered separately and struck off to the bidders who will pay the total amount of taxes, penalty, and costs charged against it, for the lowest rate of interest from the date of sale. Now it appears from the tax deeds that the sales were made in a manner not authorized by statute, and so it appears from the tax sale certificates. And hence they are all obviously void on their face. The record shows several other fatal defects, needless to consider. One such defect is quite enough. There was no reason for making a long protracted and expensive defense of several years, or any defense in this case. There was no reason for taking a mass of evidence on matters having no bearing on the title to the land.

[2] And there is no possible reason for arguing that the plaintiffs have any claim under a default judgment, which has been set aside and held void by the district court and by this court. 28 N. D. 321.¹ When the original action was commenced in February, 1910, it was based on the void tax deeds, and those deeds are still void. The complaint stated no cause of action against any party only the Kansas Land & Loan Company. It averred that the company owned the patent title to the land, and that the other defendants might claim some title or interest as the incorporators and stockholders. Now, then, the plaintiffs dismissed their action against the company and took a default judgment against the other parties, declaring that they had no title or interest in the land. Now pending this long-winded and manifestly groundless action, the corporation has ceased to exist, and the other defendants have succeeded to the title of the corporation, and they have been made parties to the action and obtained a judgment which is manifestly just and right. And as the defendants paid into court, for the benefit of the plaintiffs, all sums of money paid by them as taxes, regardless of the validity of such taxes, the plaintiffs have no cause for complaint.

The judgment is affirmed.

On Petition for Rehearing.

Some three years ago this action was commenced by the plaintiffs against the defendants and against a corporation which then had title to the land in question. The complaint in that action averred that the defendants in this action were made parties, not...