Nind v. Myers

• Decision Date: 16 October 1906
• Citation: 15 N.D. 400,109 N.W. 335
• Parties: NIND v. MYERS et al.
• Court: North Dakota Supreme Court

15 N.D. 400

109 N.W. 335

NIND

v.MYERS et al.

Supreme Court of North Dakota.

May 15, 1906.

Rehearing Denied Oct. 16, 1906.

Syllabus by the Court.

A certificate of sale for taxes, under chapter 67, p. 76, Laws 1897 (section 1331 et seq., Rev. Codes 1899), is not void on its face because of the failure to erase those parts of the blank form which were designed for use in case of a sale on different terms, where the certificate was otherwise in proper form, and the unerased parts could not mislead.

Under section 15, c. 67, p. 85, Laws 1897 (section 1345, Rev. Codes 1899), such a certificate is prima facie evidence of a valid sale without proof of a precedent judgment. (Young, J., dissenting.)

The party attacking such a certificate has the burden of showing that there was no valid judgment. (Young, J., dissenting.)

The provision, in the “Woods Law” (chapter 67, p. 76, Laws 1897), for a judgment before a sale for taxes, was merely a legislative requirement and was not inherently or constitutionally necessary as a condition precedent to the right of the Legislature to authorize a sale of the property for unpaid taxes.

A sale under the “Woods Law,” pursuant to a judgment apparently valid, but in fact invalid for want of jurisdiction in the court to render it, cannot be avoided in an action commenced more than three years after the sale, where part of the taxes for which the sale was made were valid, and though the land had never been occupied. (Young, J., dissenting.)

The notice of the time when the right to redeem from a tax sale under the “Woods Law” will expire may be mailed at the residence of the certificate holder, even though that residence is not within this state.

The affidavit of mailing such notice, filed with the clerk of court pursuant to section 1344, Rev. Codes, 1899, is competent evidence of such mailing.

When the land is in fact unoccupied, it is not necessary to state that fact in the affidavits filed pursuant to section 1344, Rev. Codes 1899, in proof of service of the notice of expiration of the time to redeem.

The party claiming title under a tax sale certificate issued pursuant to the “Woods Law” need not prove that no redemption has been made.

Appeal from District Court, Stutsman County; S. L. Glaspell, Judge.

Action by Louisa M. Nind against Valeria R. Myers and William H. Beck. Judgment for plaintiff, and defendants appeal. Reversed, and judgment ordered.Marion Conklin, for appellants. John Knauf and Wicks, Paige & Lamb, for respondent.

ENGERUD, J.

Plaintiff, claiming to be the owner in fee of a tract of land in Stutsman county comprising 280 acres, and described as the S. W. 1/4 and the S. 1/2 of the N. W. 1/4 and the N. E. 1/4 of the N. W. 1/4 of section 35, in township 137, range 64, brought this action in statutory form to quiet her title against Valeria R. Myers, William H. Beck, and all other persons unknown, etc. Valeria R. Myers and William H. Beck appeared and filed separate answers, each of which were subsequently amended. Each of said defendants claim title in themselves by virtue of numerous tax sales. The trial resulted in a judgment declaring all the tax sales void and quieting the title in plaintiff. Both defendants join in an appeal from the judgment and demand a new trial of the entire case.

It is conceded that the tax deeds under which Valeria R. Myers alleged title are void, because they name as grantee one David Myers, the original tax-sale purchaser, who had died before the execution of the deeds. This appellant, however, claims a lien upon the land by virtue of the tax sale certificates upon which the void deeds were issued; she having succeeded to the rights of the tax sale purchaser. The record discloses that, in attempting to describe the land in the assessment roll upon which her tax sales are based, the assessor made use of the abbreviations: “N. E. 4 of N. W. 4., S. 2 of N. W. 2 and S. W. 4.” Upon authority of Power v. Bowdle, 3 N. D. 107, 54 N. W. 404, 21 L. R. A. 328, 44 Am. St. Rep. 511, and Power v. Larabee, 2 N. D. 141, 49 N. W. 724, which have established a rule of property in this state, we are constrained to hold that there was no assessment, and hence no valid tax or tax sale, because there was no property described. Beggs v. Paine (just decided) 109 N. W. 322. The appellant Beck claims title under several successive tax sales upon which deeds have been issued. He also claims title by virtue of a sale of the land to him on November 21, 1897, by the sheriff of Stutsman county, pursuant to a judgment rendered against the land for taxes delinquent prior to 1895, in proceedings under the so-called “Woods Law” (chapter 67, p. 76, Laws 1897). In support of his claim of title under this sale, the defendant introduced in evidence the certificate of sale and the affidavits on file with the clerk of court in the proceedings, showing service of the notice of expiration of the time for redemption. The sufficiency of these documents as evidence of the facts sought to be established thereby were duly challenged by plaintiff at the trial for reasons which will appear in the subsequent discussion of the case. For the purpose of showing that the proceedings were void, the plaintiff offered in evidence the newspapers attached to the affidavit of publication of the notice and delinquent list on file with the clerk of court in the proceedings. It appears therefrom that the land was not clearly described in such published list. The section, township, range, and number of acres were properly stated, as well as the name of the owner, and the S. 1/2 of the N. W. 1/4 was sufficiently identified. The abbreviations referring to the remainder of the land were: “N. E. 1/4 N. W. 1/4 S. W. 1/4.” Assuming that the fact that the number of acres was stated sufficiently shows that these abbreviations were intended to describe 200 acres, instead of only ten acres, we are still confronted with the difficulty that, by reason of the absence of punctuation marks, it is not certain whether the entire series of abbreviations refer to the N. E. 1/4 of N. W. 1/4 and S. 1/2 of N. W. 1/4 and S. W. 1/4, or whether it refers to N. W. 1/4 of S. W. 1/4 and S. 1/2 of N. W. 1/4 and N. E. 1/4. The entire description could be read either way, and yet describe a single tract consisting of 280 acres. We are not prepared to say, however, that the description would necessarily be bad, if it were shown that the tract in question was the only land owned by Louisa Nind in that section. The delinquent list describes part of the land in question. The original list in the judgment book is not in evidence. We must assume that the land was therein properly described, because the sheriff was guided by the description in the original judgment in making the sale, and the certificate of sale gives a correct description of the land. The judgment was therefore on its face apparently valid; but, without expressing any opinion on the point, we shall assume, for the purposes of this case, that the judgment was in fact void for want of a clear description in the delinquent list or citation. The plaintiff also proved that no certified copy of the judgment was delivered to the sheriff before sale, but that the sheriff in making the sale used the original judgment book. This irregularity was not fatal. State Finance Co. v. Beck (just decided) 109 N. W. 357.

The respondent contends that the certificate of sale is void on its face. The certificate was made out on a blank form designed so as to be used in case of a sale either for a term of years, or to a fee-simple purchaser, or to the county; it being intended that the sheriff should fill up the proper blanks to suit the facts and strike out the inapplicable paragraphs. In this case all the blanks spaces were properly filled out, but the officer neglected to draw a line through, or otherwise strike out, the paragraphs to be used in case of a sale for a term of years or to the county. This certificate is in the following form:

“Document No. 3,210.

Sheriff's Certificate of Sale of Real Estate Tax Judgment. State of North Dakota, County of Stutsman-ss.: No. 36.

I, John H. Severn, the sheriff of said county, do hereby certify that at the sale of lands pursuant to the real estate tax judgment entered in the district court of the county of Stutsman, on the 7th day of October, A. D. 1898, in proceedings to enforce the payment of taxes delinquent upon real estate for said county, which sale was held at Jamestown, in said county, on the 21st day of November, A. D. 1898, the following described piece-or parcel- of land situated in said county and state, to wit:

+-----------------------------------------------------------------------------+
                ¦                                              ¦        ¦Town ¦      ¦Amount  ¦
                ¦Subdivision.                                  ¦Section.¦ship.¦Range.¦Sold    ¦
                ¦                                              ¦        ¦     ¦      ¦For.    ¦
                +----------------------------------------------+--------+-----+------+--------¦
                ¦Northeast quarter of Northwest quarter and    ¦        ¦     ¦      ¦        ¦
                ¦Southwest quarter and South half of Northwest ¦35      ¦137  ¦64    ¦$68 63  ¦
                ¦quarter,                                      ¦        ¦     ¦      ¦        ¦
                +-----------------------------------------------------------------------------+
                

-was offered to the bidder who would pay the amount for which the same was subject to be sold, for the shortest term of years in said piece- or parcel-.

# (And -------- having offered to pay and having paid such an amount, to wit: The sum of -------- dollars for the term of -------- years, that being the shortest term for which any person offered to take said piece-or parcel- and pay said amount: I do, therefore, in consideration of the amount so paid, and pursuant to the statutes in such cases made and provided, let the said piece-or parcel- of land to the said -------- for the term of -------- years from the...