O'Neil v. Tyler

• Decision Date: 07 November 1892
• Citation: 3 N.D. 47,53 N.W. 434
• Parties: O'NEIL v. TYLER.
• Court: North Dakota Supreme Court

3 N.D. 47

53 N.W. 434

O'NEIL

v.TYLER.

Supreme Court of North Dakota.

Nov. 7, 1892.

Syllabus by the Court.

1. Where adjoining lots in a town plat were assessed together as an entirety, and valued at one lump sum, a subsequent sale of such lots for the taxes based upon such assessment must follow the description in the assessment. The lots cannot legally be sold separately, each for a moiety of the tax arising from the lump valuation.

2. Where, on account of irregularities connected with the tax sale, a tax deed is set aside by the court, such deed no longer possesses any evidential force, and, in order to show that the tax for which the sale was made, or any subsequent tax, was a lawful tax, the party alleging the fact must show, by common-law proof, that the steps essential to a valid tax have been taken by the officials. A regular assessment and levy must be alleged and proved in order to recover judgment, under section 1643, Comp. Laws.

3. The charter of the city of Fargo, as amended in 1881, gave the mayor a veto power as to ordinances and resolutions passed by the council, and also conferred upon the “mayor and council” the power to “levy and collect taxes.” An ordinance also provided that the “mayor and council” should “levy” the annual city taxes. The validity of a tax levy being in issue, the record of the proceedings of the city council showed that the council by resolution levied a tax, but no evidence was offered to show that the mayor approved of such resolution, or that he in any manner participated in or knew of the action of the council. Held, that the proof failed to show a valid levy. Held, further, that no valid levy could be made by the independent action of the council.

4. A description of real estate as it appeared in the assessment roll examined, and held to be sufficient.

5. Where a board of county commissioners meets as a board of equalization on the day appointed by law, and, after organization, adjourns until the next day, subsequent adjournments from day to day by less than a quorum of such board will preserve the duration of such session.

6. The assessor failed to deliver the assessment roll to the auditor on the day required by law, but the board of equalization was in session upon that day, and, by adjournments from day to day, entered in the minutes, continued in session until such roll was filed, and thereafter a majority of said board remained in session for two days, engaged in equalizing the taxes for that year. Held, that the taxpayers had sufficient notice of the time of meeting of the board of equalization, and sufficient opportunity to be heard upon their assessments, notwithstanding the irregularity in filing the assessment roll.

7. Section 13 of the charter of the city of Fargo, as amended in 1881, provides “that upon the passage of all ordinances the yeas and nays snail be entered upon the record of the city council.” This provision is mandatory, and it appearing that an ordinance (title 1, c. 6, of the ordinances of the city of Fargo) was adopted in violation of said provision, and that upon its passage by the council the yeas and nays were not entered upon the record, held, that said ordinance was not legally adopted, and hence never became a valid ordinance. Held, further, that an ordinance subsequently adopted, purporting to amend a single section of such ordinance, and which could not be enforced when standing alone, is likewise null and void.

8. The territorial statutes embraced in sections 1640, 1643, Comp. Laws, undertook to modify and regulate the practice in a variety of tax cases, including actions to “cancel” or “avoid” tax deeds. These statutes cannot be completely reconciled with each other, but the court is not at liberty to wholly ignore them, and render its decisions in such cases upon general principles only. With a view to giving the two sections some effect, section 1640 is limited to cases where the validity of the tax, in whole or in part, is conceded, and section 1643 is applied to other cases arising under the territorial tax laws. Bartholomew, J., dissenting.

9. The object of this action is to quiet plaintiff's title to real estate, and to annul defendant's adverse title, and it is brought under sections 5449, 5450, Comp. Laws. Held that, within the meaning of section 1643, supra, it is an action to “cancel” a tax deed. The plaintiff invoked the equity powers of the district court by praying for equitable relief, and that court gave such relief by its judgment annulling certain tax deeds as clouds on plaintiff's title. The action was therefore in equity, and none the less so because plaintiff used a short form of complaint, and did not set out the nature of the cloud he was seeking to remove.

Appeal from district court, Cass county; W. B. McConnell, Judge.

Statutory action by William O'Neil against R. S. Tyler to quiet an adverse title to real estate, which defendant claims by virtue of certain tax deeds. Judgment for plaintiff. Defendant appeals. Judgment setting aside the tax deeds is affirmed, and case remanded for further proceedings consistent with the opinion.Newman & Resser, for appellant. J. E. Robinson, for respondent.

Wallin, J.

This is a statutory action to quiet an adverse title to real estate. The grounds of the action are not alleged in the complaint further than to state that plaintiff is the owner of lots 12 and 13 of block 9 in Keeney & Dewitt's addition to the city of Fargo, in Cass county; that defendant wrongfully claims an estate or title to the lots adversely to the plaintiff; that the action is brought to determine such adverse claim. The prayer of the complaint is, in effect, that defendant shall quitclaim his interest in the lots to the plaintiff, or set forth by answer the nature of his adverse claim, that it may be adjudged to be void, and that defendant be restrained from asserting any claim to the lots. Defendant answered the complaint, denying each and every allegation thereof, and further set out title to the lots in himself by virtue of two certain tax deeds annexed to and made a part of the answer. One of the deeds is based upon a tax sale of the lots for taxes claimed to have been assessed against them by the taxing officials of the city of Fargo in the year 1884, such tax deed being executed by the city treasurer pursuant to a tax sale made by him in 1885. The answer further alleges that, subsequent to such tax sale, defendant paid certain sums assessed against said lots by the city authorities as and for taxes. Referring to the other tax deed, the answer avers, in substance, that such deed was made and delivered to defendant by the county treasurer of Cass county as the culmination of a tax sale of the lots made by the county treasurer to the defendant in October, 1887, for taxes claimed to have been assessed against the lots by the county officials of Cass county in the year 1886. The answer further states that after such sale defendant paid certain other sums as and for taxes upon the lots, which were claimed to have been assessed by the county authorities subsequent to the year 1886. Defendant further alleges that said deeds were not only regular in themselves, but were given pursuant to valid tax sales made for delinquent taxes; that the taxes for which the lots were sold were properly assessed, equalized, and levied by the proper officers of the city and county, respectively, at the proper time and in the proper manner. The affirmative matter contained in the answer was pleaded as a counterclaim, and plaintiff replied thereto, denying the whole thereof, except that the tax sales and deeds were made and delivered, and the sums alleged were paid by defendant as subsequent taxes; also that plaintiff neither paid nor tendered any of the taxes before instituting the action. The trial was had before the court, and, after findings were filed in plaintiff's favor, judgment was entered adjudging the plaintiff to be the owner of the lots, annulling the tax deeds as void, and for costs. It will suffice here to say that the trial court, for various reasons, set out in the findings, held that the alleged taxes for which the lots were sold were never lawfully assessed or levied against the lots, and for that reason the sales were illegal, and that, no taxes being lawfully assessed or levied, none need be paid or tendered preliminary to the action. A bill of exceptions was settled, and the evidence comes up with the record.

In deciding the case we shall not refer in detail to all the objections urged by plaintiff's counsel against the validity of the tax sales and tax deeds through and by which defendant claims to be the owner of the land. We are unanimously of the opinion that the tax sales were illegal sales, and that the deeds given in pursuance of such sales are invalid, and hence convey no title to the defendant. The facts upon which this conclusion rests are undisputed, and are common to both the city and county sales. It appears by defendant's answer, and is admitted by the plaintiff's reply, and was conceded at the trial, that the lots were struck off to the defendant at both of the tax sales in question, one at a time, for a sum bid for each as a separate parcel. The uncontroverted testimony, consisting of the assessor's returns and tax lists, discloses the fact that in assessing the lots for the years in question both lots (11 and 12) were grouped together as an entirety, and were valued in the aggregate at one lump sum. The taxes were apportioned against the property upon such lump valuation. It appears affirmatively that no valuation was placed upon either lot separately, nor was a tax apportioned against either lot as a separate parcel of land. The evidence shows that the two lots constituted plaintiff's homestead; his house resting upon both lots. Conceding, without deciding the point, that the manner of occupying the property justified an aggregate valuation such as was made, it...