Nind v. Myers

• Citation: 109 N.W. 335,15 N.D. 400
• Decision Date: 15 May 1906
• Court: North Dakota Supreme Court

109 N.W. 335

15 N.D. 400

LOUISA M. NIND v. VALERIA R. MYERS AND WILLIAM H. BECK

Supreme Court of North Dakota

May 15, 1906

Rehearing denied October 16, 1906.

Appeal from District Court, Stutsman count; Glaspell, J.

Action by Louisa M. Nind against Valeria R. Myers and William H Beck. Judgment for plaintiff, and defendants appeal.

Reversed and judgment ordered.

Judgment reversed, and judgment entered in usual form that the plaintiff, Nind, and defendants Myers have no estate or interest; Appellant Beck recovered from respondent taxable costs and disbursements of both courts.

Marion Conklin, for appellants.

Failure to furnish copy of judgment to sheriff upon which to sell is not fatal. Kipp v. Collins, 33 Minn. 394.

The description NE4 NW4SW4 S2NW4 taken with owner's name and the quantity of land embraced, viz., 280 acres, is definite. Stoddard v. Lyon, 89 N.W. 1116.

The title under sheriff's certificate is cured by the statute of limitations. Whitney v. Marshall, 17 Wis. 174; Stoddard v. Lyon, supra.

If defendant's tax deeds are set aside they are entitled to judgment for the amount of the valid tax. O'Neill v. Tyler, 3 N.D. 47, 53 N.W. 434; Douglas v. Fargo, 13 N.D. 467, 101 N.W. 919; McHenry v. Brett, 9 N.D. 68, 81 N.W. 65.

John Knauf, Wicks, Paige & Lamb, for respondent.

The description NE4 NW4SW4 S2NW4 is void. Kent v. Hayden, 2 N.W. 495; Knight v. Alexander, 37 N.W. 799; Power v. Bowdle, 3 N.D. 107, 54 N.W. 404, 21 L. R. A. 328, 44 Am. St. Rep. 511.

To render tax certificates evidence, precedent judgment must be proven. Sanborn v. Cooper, 17 N.W. 856; Russell v. Gilson, 31 N.W. 692.

The certified copy of the tax judgment is the sheriff's warrant for sale, and without it his act is void. Cooley on Taxation (3d Ed.) 927. Bell v. Johnson, 111 Ill. 374; Ransom v. Henderson, 2 N.E. 667.

Mailing of notice of redemption to one outside of the state is void. Laner v. Webster, 52 N.E. 489.

Where there is no judgment or there is a want of jurisdiction to enter it, statute of limitations does not apply. Sanborn v. Cooper, supra; Knight v. Alexander, supra.

ENGERUD, J. YOUNG, J., (dissenting).

OPINION

ENGERUD, J.

Plaintiff, claiming to be the owner in fee of a tract of and in Stutsman county comprising 280 acres, and described as the S.W. I/4 and the S. I/2 of the N.W. I/4 and the N.E. I/4 of the N.W. I/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) 15 N.D. 436, 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. I/2 of the N.W. I/4 was sufficiently identified. The abbreviations referring to the remainder of the land were: "N.E. I/4 N.W. I/4 S.W. I/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. I/4 of N.W. I/4 and S. I/2 of N.W. I/4 and S.W. I/4, or whether it refers to the N.W. I/4 of S.W. I/4 and S. I/2 of N.W. I/4 and N.E. I/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) 15 N.D. 374, 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 blank 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. 3210.

"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:

SUBDIVISION

Sec-

Town

R'nge

Am't

tion

ship

Sold

For

Northeast quarter of Northwest quaater and

Southwest quarter and South half of Northwest

quarter

35

137

64

$ 68.63

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 date hereof, subject to any redemption provided by law.)

" (And no person having offered to pay such amount for a term of years, I did sell the fee of said piece-- or parcel-- of land to William H. Beck for the sum of sixty-eight 63-100 dollars, that being the highest sum bid therefor; and he having paid such sum, I do, therefore, in consideration thereof and pursuant to the statutes in such cases made and provided, convey the said piece-- or parcel-- of land in fee simple to the said William H. Beck, his heirs and assigns, forever, subject to any redemption provided by law.)

" [parallel] (And there being no bidder upon that offer, I offered the fee of the same to the highest bidder, and no one bidding upon...