Paine v. Willson

• Decision Date: 08 June 1906
• Docket Number: 2,317.
• Citation: 146 F. 488
• Parties: PAINE v. WILLSON.
• Court: U.S. Court of Appeals — Eighth Circuit

146 F. 488

PAINE v. WILLSON.

No. 2,317.

United States Court of Appeals, Eighth Circuit.

June 8, 1906

Seth Newman, Daniel B. Holt, and John S. Frame, for appellant.

C. J Murphy and Fred S. Duggan, for appellee.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN Circuit Judge.

This is a suit in equity brought by Frank A. Willson to remove the cloud of certain tax deeds and of certain certificates of sales tax held by the defendant, Paine, from his title to the southwest quarter of section 10, in township 150 north, of range 60 west, in Nelson county, in the state of North Dakota, and to quiet the title thereto in the complainant. A decree to that effect was rendered. In reaching its conclusion the court below held that two certificates of tax sales were void because the following description in the assessor's roll, upon which the levies and sales were based, was fatally defective:

Real estate assessment of Osago Township, Nelson County, North Dakota, for

the year 1892:

Owner's Name. Description. Section or lot. Twp. or Block. R.

150 60

Frank A. Willson. S.W. 1/4 10

Opposite the name of Willson there was no number of any township or of any range, and there were no ditto marks. The court below was of the opinion that the absence of the number of any township or of any range and of any ditto marks in this description was fatal to the certificates of sale, under the decision of the Supreme Court of North Dakota in Sheets v Paine, 10 N.D. 103, 105, 86 N.W. 117, and this ruling is assigned as error.

The question which this specification of error presents is not whether or not this court would be of the opinion that the description here presented was sufficient in the absence of controlling authority. It is whether or not the Supreme Court of North Dakota has decided that such a description is fatally defective, for the decision of that court upon such a question establishes a rule of property in that state which must prevail in the federal courts. Detroit v Osborne, 135 U.S. 492, 10 Sup.Ct. 1012, 34 L.Ed. 260; Percy v. Cockrill, 4 C.C.A. 73, 82, 53 F. 872, 877; Madden v. Lancaster Co., 12 C.C.A. 566, 570, 65 F 188, 192; Union Pac. R. Co. v. Reed, 25 C.C.A. 389 394, 80 F. 234, 239; Traer v. Fowler (C.C.A.) 144 F. 810, decided by this court at the December term, 1905. Counsel for the appellant deny, and counsel for the appellee assert, that the Supreme Court of North Dakota has so decided in Sheets v. Paine, and that this court has so held in Paine v. Germantown Trust Co. (C.C.A.) 136 F. 527. Let us, in the first instance, present clearly to our minds the question decided in these cases and the way in which it was presented.

In Sheets v. Paine the description in the assessment roll was under the heading: 'Real property assessment in the town of Field, county of Nelson, North Dakota, 1890,' and it disclosed the same defect as that which appears in the case at bar. The land there in controversy was in township 150, range 58. These numbers did not appear in the description of this land upon the assessment roll. Counsel for the appellant sets forth in his brief a portion of the record in that case, which is conceded to be correct, and from which it appears that the counsel for the defendant asked this question: 'Now, Mr. Gordon, the township of Field is composed of what congressional township? ' The plaintiff objected to the question, 'on the ground that it is incompetent, irrelevant, immaterial; the assessment book cannot be varied or explained by parol testimony. ' There was no ruling or exception, and the witness answered, 'It is township 150, range 58, known as Field township. ' After the examination had proceeded through two pages of printed testimony, the defendant asked the witness this question: 'Is it a fact that that congressional township was organized into the civil township of Field? ' No objection was made to this question, and the witness answered 'Yes.' When the case was presented to the Supreme Court of North Dakota upon this record, it held that the description was fatally defective.

In Paine v. Germantown Trust Co. (C.C.A.) 136 F. 527, the description in the assessor's roll was headed: 'Real property assessment for the township of Dahlen, county of Nelson, and state of North Dakota, for the year 1894. ' The land was in government township 154, range 57, and these numbers did not appear in the description of the complainant's land in the assessor's roll. The parties stipulated at the trial that 'the township of Dahlen, Nelson county, North Dakota, named in the heading of each of said assessment rolls, is and was at the time said assessments were respectively made the government township numbered 154 in range 57 in said county,' and that the stipulation was 'made for the purpose of use as evidence of the facts herein stated upon the trial of this action, and to dispense with the necessity of introducing the records or certified copies of the records bearing upon said matter ' That portion of this agreement which contained the contract that Dahlen township was government township 154, range 57, was objected to by the defendant on the grounds 'that the same is immaterial, incompetent, and that the assessment roll cannot be aided in determining the description of the land attempted to be described by oral or other testimony than the assessment roll itself, but must be determined from the face of the assessment roll itself. ' These objections were overruled, and an exception was reserved, so that when the case came to this court all objections to the character of the evidence of the fact that the civil township of Dahlen was the government township 154 of range 57 had been carefully eliminated by the stipulation, that fact had been admitted, and the only question left was its effect. This court held that the decision in Sheets v. Paine was controlling, that under it the fact that the government township was the civil township was immaterial, and that the description was fatally defective. These dicisions appear to rule the case in hand. Counsel for the appellant, however, attempt to distinguish them. They say that in the Sheets case the fact that the civil township of Field was the government township 150, range 58, was proved by parol testimony over the objection of the plaintiff, and that in the Germantown Trust Company Case the stipulation that the civil township of Dahlen was the congressional township 154, range 57, was received in evidence over the defendant's objection, while in the case at bar the stipulation of the fact that Osago township is government township 150, range 60, was received in evidence without objection. But while the court held in the Sheets Case that the identity of the civil township and the government township could not be proved by parol, this was not all of its decision, nor was it the basic rule declared by the court in that case upon which the objection to the evidence was sustained. The gist of that decision was that the fact of the identity of the townships could not be proved to modify or aid the assessment by any evidence outside the record of the assessment itself. The court quoted its own words in Power v. Bowdle, 3 N.D. 107, 54 N.W. 404, 21 L.R.A. 328, 44 Am.St.Rep. 511, where it declared that 'the law requires a definite record, and no other evidence of the assessment is competent,' and that: 'To this it may be added that the rights of a purchaser at a tax sale are fixed at the time of his purchase, and his title depends upon the validity of the proceedings had anterior to the purchase. Nor can his rights be enlarged by any evidence introduced to supply fatal omissions which constitute defects which are fundamental and jurisdictional to the tax,' and decided that the absence of the numbers of the township and range was fatal to the description. In the case of the Germantown Trust Company the defendant expressly stipulated that the agreement that the civil and congressional townships were identical should take the place of, and obviate the production of, the records which proved that fact, and thereby limited his objection to his contention 'that the assessment roll cannot be aided in determining the description of the land attempted to be described by oral or other testimony than the assessment roll itself, but must be determined from the face of the assessment roll itself. ' This stipulation left the fact of the identity of the townships conclusively established in that case, for there was no evidence to the contrary, and no question of the character of the proof remained for consideration when the case reached this court. Forms and rules for the taking and introduction of evidence are prescribed by statutes and decisions, which give to the opposing party the right to the production of the best evidence of a fact, but he may waive these rules, permit the introduction of inferior evidence, or stipulate the existence of the fact, and when he does so that fact is deemed established by the best evidence by which it is provable. U.S. v. Homestake Min. Co., 54 C.C.A. 303, 117 F. 481, 489; Walton v. Railway Co., 6 C.C.A. 223, 225, 56 F. 1006, 1008; National Loan & Investment Co. v. Rockland Co., 36 C.C.A. 370, 372, 94 F. 335, 337. The result is that the alleged distinction between the former cases and that in hand is not founded in fact. Every question of the competency of the evidence in the Germantown Trust Company Case to prove the identity of the townships had been extracted before that case reached this court, and the only question presented for decision by the record was whether or not the description could be aided by any proof or agreement of the fact of the identity of the townships de hors the description itself, and whether or not the description...