Peplinski v. County of Richland

• Decision Date: 18 August 2000
• Docket Number: No. 990376.,990376.
• Parties: LaVern PEPLINSKI, Plaintiff and Appellant, v. COUNTY OF RICHLAND, a Municipal Corporation; and Christian M. Anderson, Defendants, Third-Party Plaintiffs, and Appellees, v. The United States of America, Farm Service Agency, f/k/a Farmers Home Administration, United States Department of Agriculture; The United States of America, Commodity Credit Corporation, U.S. Department of Agriculture; Nodak Mutual Insurance Company; PHI Financial Services, Inc.; Farmers Union Oil Company of Lidgerwood/Wyndmere, a North Dakota Cooperative; Wyndmere Farmers Elevator, a North Dakota Cooperative; and Farm Credit Services, f/k/a Federal Land Bank Association of St. Paul, Third-Party Defendants
• Court: North Dakota Supreme Court

615 N.W.2d 546

2000 ND 156

LaVern PEPLINSKI, Plaintiff and Appellant, v. COUNTY OF RICHLAND, a Municipal Corporation; and Christian M. Anderson, Defendants, Third-Party Plaintiffs, and Appellees, v. The United States of America, Farm Service Agency, f/k/a Farmers Home Administration, United States Department of Agriculture; The United States of America, Commodity Credit Corporation, U.S. Department of Agriculture; Nodak Mutual Insurance Company; PHI Financial Services, Inc.; Farmers Union Oil Company of Lidgerwood/Wyndmere, a North Dakota Cooperative; Wyndmere Farmers Elevator, a North Dakota Cooperative; and Farm Credit Services, f/k/a Federal Land Bank Association of St. Paul, Third-Party Defendants

No. 990376.

Supreme Court of North Dakota.

August 18, 2000.

Rehearing Denied September 18, 2000.

David A. Garaas, Garaas Law Firm, Fargo, N.D., for plaintiff and appellant.

Steven J. Lies (on brief), Lies & Bullis, Wahpeton, N.D., for defendant, third-party plaintiff, and appellee, County of Richland.

Christian M. Anderson, Anderson Law Office, Wahpeton, N.D., for defendant, third-party plaintiff, and appellee, Christian M. Anderson.

NEUMANN, Justice.

[¶ 1] Lavern Peplinski appealed from an amended judgment quieting title in 80 acres in Christian M. Anderson. We hold the proceedings for a tax sale and the issuance of a tax deed for the 80 acres complied with applicable statutory requirements. We affirm.

I

[¶ 2] Peplinski was the record title owner of 80 acres of agricultural land in Richland County, and he failed to pay his 1991 real estate taxes for the land. Between November 1 and November 15, 1992, Richland County mailed Peplinski notice of a December tax sale of the 80 acres. See N.D.C.C. § 57-24-01.¹ Peplinski denied receiving the notice. On Tuesday December 1 and Friday December 4, 1992, Richland County caused notice of a scheduled tax sale beginning on December 8, 1992, to be published in the official county newspaper. Richland County concedes the publication did not comply with N.D.C.C. § 57-24-07, which requires notice to be published once a week for two consecutive weeks with the first publication at least 14 days before the sale. On December 10, 1992, Richland County purchased the 80 acres at the tax sale and received a tax sale certificate for the land. See N.D.C.C. § 57-24-23. Peplinski also failed to pay his 1992 through 1995 real estate taxes for the 80 acres, which resulted in the county receiving subsequent tax sale certificates for those years under N.D.C.C. § 57-24-25.

[¶ 3] Richland County prepared a May 20, 1996 notice of expiration of the period of redemption for the 1991 taxes, stating the amount necessary to redeem the land was $607.45. See N.D.C.C. §§ 57-28-01 and 57-28-02. In May 1996, Richland County mailed Peplinski the notice by certified mail, restricted delivery, and also mailed him a "courtesy" notice. Richland County also mailed the notice by certified mail to all lien holders of record. The notice said a tax deed would be issued unless the property was redeemed on or before October 1. See N.D.C.C. § 57-28-02. The notice of expiration of the period of redemption sent by certified mail to Peplinski was returned undelivered despite two efforts by post office employees to deliver the notice at Peplinski's home and despite notices to Peplinski to pick up his certified mail at the post office. Richland County also published notice of expiration of the redemption period in the official county newspaper on July 28, August 4, and August 11, 1996. See N.D.C.C. § 57-28-06.

[¶ 4] On September 12, 1996, Richland County assigned all of its right, title and interest in the 80 acres to Anderson for $1,753.58. On October 2, 1996, Peplinski called the Richard County Treasurer's Office and was informed it was too late to redeem the 80 acres. Richland County issued a tax deed for the 80 acres to Anderson on October 3, 1996. Peplinski thereafter tried to redeem the land by tendering payment to Richland County in October 1996, but Richland County rejected his redemption attempts.

[¶ 5] Peplinski initiated this quiet title action against Richland County and Anderson, claiming the proceedings for the tax sale and the issuance of the tax deed were deficient. Anderson answered, asserting title to the land under the tax deed. Anderson also initiated a quiet title action against Peplinski's potential judgment or lien creditors. Peplinski subsequently amended his complaint to allege the 80 acres were part of his homestead. All lien holders except the United States defaulted, and the United States appeared and conceded if the tax sale was upheld, its lien position was terminated. After an evidentiary hearing, the trial court quieted title in the land in Anderson. Peplinski appealed.

II

[¶ 6] To understand the issues raised in this appeal, we briefly summarize the applicable statutory scheme regarding tax sales and issuance of a tax deed for delinquent real estate taxes. See fn.1. After real estate taxes are levied for a particular year, the county treasurer mails tax statements by December 26 of that year to property owners at their last known address. See N.D.C.C. § 57-20-07.1. If a property owner fails to pay those taxes, the treasurer mails each owner a notice between November 1 and November 15 of the following year which states the owners property will be sold at an annual tax sale on the second Tuesday of December. See N.D.C.C. § 57-24-01. In addition to the mailed notice, the county auditor posts a list of the delinquent real estate taxes in the auditor's office, see N.D.C.C. §§ 57-24-02 and 27-24-03, and causes notice of the tax sale to be published in the official county newspaper. See N.D.C.C. § 57-24-07. If the taxes remain unpaid, the auditor may sell the property at a public auction beginning on the second Tuesday of December for a bid equal to the total amount of taxes, penalties, and sale costs. See N.D.C.C. § 57-24-12. A purchaser at a tax sale is entitled to a tax sale certificate describing the land purchased, the sum paid, and the time when the purchaser will be entitled to a tax deed. See N.D.C.C. § 57-24-19. If there is no private bidder at the sale, the treasurer bids for the county, which acquires the same legal and equitable rights as a private bidder, see N.D.C.C. § 54-27-14, and a tax sale certificate is deemed issued to the county. See N.D.C.C. § 57-24-23. A tax sale certificate is presumptive evidence of the regularity of all prior proceedings, see N.D.C.C. § 57-24-19, and is prima facie evidence that all requirements for the sale were satisfied. See N.D.C.C. § 57-24-29. A tax sale may not be set aside or held invalid unless a party objecting to the sale proves notice of the sale as required by law was not given. See N.D.C.C. § 57-24-29.

[¶ 7] Chapter 57-26, N.D.C.C., outlines procedures for redeeming property sold at a tax sale. After the tax sale, any person having an interest in the property can redeem it by paying the amount it sold for, plus interest, before the expiration of the redemption period. See N.D.C.C. §§ 57-26-02 and 57-26-03. Under N.D.C.C. § 57-26-01, a tax sale certificate, whether owned by the county or anyone else, may be redeemed at any time before the period of redemption expires and within 90 days after notice of the expiration of the redemption period is given as required by law.

[¶ 8] If the land is not redeemed, N.D.C.C. ch. 57-27 outlines the rights of a private purchaser, and N.D.C.C. ch. 57-28 outlines the rights of a county. If the property is not redeemed within three years after the county acquires a tax sale certificate, the auditor serves notice by certified mail before June 1 that the redemption period will expire on October 1, see N.D.C.C. §§ 57-28-01 through 57-28-05, and causes notice to be published once before August 1 in the official county newspaper. See N.D.C.C. § 57-28-06. If the property is not redeemed on or before the expiration of the redemption period on October 1, N.D.C.C. § 57-28-09 authorizes the auditor to issue a tax deed for the property. Under N.D.C.C. § 57-28-08, the failure of an owner, mortgagee, or lien holder to redeem the land before expiration of the period of redemption operates to pass any interest of the owner to the county, to foreclose all rights of redemption, and to waive all errors, irregularities, or omissions which do not affect substantial rights, except jurisdictional defects. We consider Peplinski's arguments within the context of that statutory scheme.

III

[¶ 9] Peplinski argues the entire tax sale proceeding was invalid because the trial court found Richland County's publication of the notice of the tax sale did not comply with N.D.C.C. § 57-24-07.² The trial court found the notice of tax sale published on December 1 and December 4, 1992, for the sale on December 10, 1992, did not comply with N.D.C.C. § 57-24-07, which requires notice to be published once a week for two consecutive weeks with the first publication at least 14 days before the sale. The court nevertheless decided the irregularities in the publication were not jurisdictional and did not invalidate the tax sale proceeding. Peplinski argues Richland County's failure to strictly follow the publication requirements in N.D.C.C. § 57-24-07 is a jurisdictional defect under Dever v. Cornwell, 10 N.D. 123, 86 N.W. 227 (1901) and Fibelstad v. Grant County, 474 N.W.2d 54 (N.D.1991), and denied him due process.

[¶ 10] In Dever, 10 N.D. at 129-30, 86 N.W. at 230, the governing statute, Section 1255 of the Revised Codes of 1895, required publication of a notice of tax sale once a week for three consecutive weeks preceding the sale. This Court construed that language to mean publication must continue for and during three full weeks of seven days each, a total period of 21 days, preceding the sale. Dever, 10 N.D. at 129-30, 86 N.W. at 230-31. There, the first publication was 18 days before the sale, not 21 days as required by that s...