Payne v. A. M. Fruh Co., 7752

Decision Date03 August 1959
Docket NumberNo. 7752,7752
PartiesJohn W. PAYNE; Roland M. Gross and Winifred E. Gross; Ida M. Harwood and Walter J. Harwood; Broken Bone 99 Corporation of Grand Forks, North Dakota, a corporation; Ronald Crighton; D. J. Lamb; James P. Griffin; Hunter S. Smith and Elva M. Smith, husband and wife, as joint tenants; E. O. Hamberg and Elsie Hamberg, joint tenants; G. E. Petters; and John Ingwalson; Walter Kamp and Anita Kamp, Plaintiffs and Respondents, v. A. M. FRUH COMPANY et al., Defendants and Appellants.
CourtNorth Dakota Supreme Court

Syllabus by the Court.

1. The owner of a perpetual non-participating royalty has such an interest in real property that he must be served with notice of expiration of the time for redemption of the property in tax deed proceedings.

2. Notice of expiration of the time for the redemption from the sale of property at tax sale must be served upon all persons whose interests in the property will be extinguished by the expiration of redemption and are of record in the office of the register of deeds and clerk of court at the time the notice is given.

3. A tax deed is an independent grant from sovereign authority which gives a new complete and paramount title which has nothing to do with the prior chain of title.

4. Where mineral interests are severed from the record owner's title at a time when the whole interest in the land is subject to a county's lien for taxes, there is no severance as to the county. The county's lien remains as before a single lien upon the single entire estate in the land.

5. A tax deed founded upon a tax lien, to which every interest in the land described in the deed was subject, conveys a single, new, and paramount title to every interest in the land, which has nothing to do with the former chain of title. The new title is one from which no interests have ever been severed.

6. Possession of land under a title or color of title to a single estate, which comprises every interest in the land and from which no mineral interests have ever been severed, is coextensive with the title or color of title.

7. A grantee who enters into actual and hostile possession, of land, under the color of a tax deed, which grants a new presumptive title to every interest in the land and from which new title or presumptive title no mineral interests have ever been severed, and continues such possession for a period of ten years and pays all taxes assessed and levied upon the single entire estate in the land, acquires a title valid in law to such interest.

McGee and Van Sickle, Ilvedson, Pringle, Herigstad & Meschke, Palda, Palda & Peterson, Minot, Everett E. Palmer, Williston, Shaft, Benson & Shaft, Grand Forks, Samuel H. Dolve, Minot, Telmar E. Rolfstad, Williston, H. Morris Borstad and Comart Peterson, Tioga, Joseph P. Stevens, Minot, Strutz, Jansonius & Fleck, Bismarck, Burk & O'Connell, Williston, for defendants and appellants.

Bjella, Jestrab & Neff, Williston, for plaintiffs and respondents.

BURKE, Judge.

This is a statutory action to determine adverse claims to interests in real property. The plaintiffs claim title to their respective interests in the land described in the complaint by virtue of deed from Williams County to the plaintiff, Walter Kamp, of land acquired by the county in tax proceedings and by other conveyances subordinate thereto. The defendants claim title to perpetual non-participating royalty interests in the described land, derived from and under seven original royalty assignments executed between May 18, 1936 and September 28, 1937, by the then holder of the record title to the land. The trial of the action in the District Court of Williams County resulted in a judgment for the plaintiffs. The defendants have appealed from the judgment and demanded a trial de novo in this court.

There are three main issues in the case. First, was the tax title acquired by Williams County a valid title? Second, assuming the tax title of Williams County to be invalid, have the plaintiffs acquired title valid in law by adverse possession and payment of taxes for a period of ten years pursuant to the provisions of Section 47-0603, Supplement to North Dakota Revised Code 1943? Third, are the claims of the defendants barred by Section 28-0102, NDRC 1943, commonly referred to as the residuary statute of limitations?

Upon the first issue it is urged by the defendants that the tax deed is void because no notice of the expiration of redemption from the tax sale of the described land was ever served upon any of the defendants. It is conceded that no such service was made. Plaintiffs, however, say that since defendants' interest in the land was such that they had no right of possession or entry they were not entitled to notice. Plaintiffs also contend that the county auditor, in conducting the sale proceedings, precisely followed the statutory procedure in all respects and that therefore the tax title is valid, even though someone who might have been legally entitled to notice of expiration of the period of redemption did not receive it.

Section 57-2804, NDRC 1943, provides:

'The county auditor shall serve the notice of the expiration of the period of redemption upon the owner of the record title of the real estate sold to the county for taxes, and upon each mortgagee, lienholder, and other person interested therein as may appear from the records of the register of deeds and the clerk of the district court of said county. * * * The register of deeds and the clerk of the district court, upon request by the county auditor, and within ten days thereafter, shall furnish him with a certified list giving the names and addresses of all persons who appear to be interested as owners, mortgagees, lienholders, or otherwise in said real estate, upon whom the notice of the expiration of the period of redemption must be served.'

A perpetual non-participating oil and gas royalty is an interest in real property. Corbett v. La Bere, N.D., 68 N.W.2d 211. It is true that a royalty interest includes no right of possession or entry, as is contended by the plaintiffs, but we see nothing in Section 57-2804, supra, which limits the necessity of serving of notice of expiration of redemption, to the holders of possessory interests. This statute requires service upon all persons interested in the land. Furthermore, Section 57-2602 provides that

'Redemption from tax sale may be made by:

'1. Any person or corporation having an interest in the real estate sold * * *.'

In the latter section there is no specific listing of types of interest which entitle the owner to redeem and therefore there is no need or opportunity to invoke the rule of ejusdem generis in its construction, as is contended for by the plaintiffs. Construing the two statutes together we have no doubt that the interest of a royalty owner is such that the notice of expiration of redemption must be served on him in tax proceedings.

The plaintiffs assert, however, that since the county auditor precisely followed the directions of the applicable statutes in serving the notice of expiration of redemption, the fact that a person, who was entitled to notice, did not receive it will not invalidate the tax title proceedings. In support of this contention they cite Cota v. McDermott, 73 N.D. 459, 16 N.W.2d 54, 155 A.L.R. 1271, and Schott v. Enander, 73 N.D. 352, 15 N.W.2d 303. In each of these cases it was held that service upon the former record owner by mailing the notice to his address of record was sufficient, even though...

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15 cases
  • Brink v. Curless
    • United States
    • North Dakota Supreme Court
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    ...Corp., 66 N.W.2d 397 (N.D.1954); Strom v. Giske, 68 N.W.2d 838 (N.D.1954); Wittrock v. Weisz, 73 N.W.2d 355 (N.D.1955); Payne v. Fruh, 98 N.W.2d 27 (N.D.1959). (4) That where the jurisdictional requirements of our statutes have been strictly complied with a tax deed issued to the county con......
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    ...not expressly excepted. Lambert v. Bradley, 73 S.D. 316, 42 N.W.2d 606; Warren v. Blackman, 62 S.D. 26, 250 N.W. 681; Payne v. A. M. Fruh Company, N.D., 98 N.W.2d 27; Flag Oil Corporation of Delaware v. Phelps, Okl., 298 P.2d 456. A new title therefore originated with the tax deeds to Butte......
  • Siana Oil & Gas Co. v. Dublin Co.
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    ...interest had been severed from the property through the 1938 conveyance.[¶ 11] Second, this Court's decision in Payne v. A.M. Fruh Co. , 98 N.W.2d 27 (N.D. 1959) is dispositive. In Payne , the facts of the case were summarized as follows:In this case the land in question was sold to the cou......
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1 books & journal articles
  • CHAPTER 2 ADVANCED MINERAL CONVEYANCING AND TITLE ISSUES - PART 2
    • United States
    • FNREL - Special Institute Advanced Mineral Title Examination (FNREL)
    • Invalid date
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