Peterson v. Reishus, 6402.

• Decision Date: 02 April 1936
• Docket Number: No. 6402.,6402.
• Citation: 266 N.W. 417,66 N.D. 436
• Parties: PETERSON v. REISHUS et al.
• Court: North Dakota Supreme Court

66 N.D. 436

266 N.W. 417

PETERSON

v.REISHUS et al.

No. 6402.

Supreme Court of North Dakota.

April 2, 1936.

Syllabus by the Court.

1. By section 2206, Comp.Laws 1913, a tax deed vests in the purchaser, his heirs or assigns, an absolute estate in fee simple, and such deed is prima facie evidence of the regularity of all the proceedings from the assessment and valuation of the land by the assessor up to the execution of the deed.

2. Where the statute makes a tax deed prima facie evidence of the regularity of all the proceedings leading up to the execution of the deed, the burden is upon the person attacking the tax title to prove that the tax title is jurisdictionally defective.

3. A grantee cannot recover damages against his warrantor on account of the expense involved in an action to quiet title where there was no hostile claim of title and plaintiff's title was not defective.

Appeal from District Court, Mountrail County; A. J. Gronna, Judge.

Action by August P. Peterson against S. S. Reishus and another. From an adverse judgment, plaintiff appeals.

Affirmed.

R. E. Swendseid, of Stanley, for appellant.

F. F. Wyckoff, of Stanley, for respondents.

BURKE, Chief Justice.

On the 15th of October, 1926, the defendants conveyed to the plaintiff by warranty deed, containing the usual covenants of warranty, a quarter section of land in Mountrail county, N. D. The plaintiff took actual possession of said land on the 15th of October, 1926, and has been in possession ever since. In 1934 the plaintiff conveyed the said land to his son, Torrey Peterson, who made application to the Federal Land Bank for a loan. The attorney for the Federal Land Bank rejected the title because the defendants herein, plaintiff's grantors, held title through two tax deeds issued to the defendant S. S. Reishus in 1925.

After the loan had been turned down on the advice of the attorney for the Federal Land Bank, on the 31st of March, 1934, said attorney wrote to the defendant Reishus a letter, stating,

“On an examination of the abstract for the purpose of a Federal Land Bank loan, I find that your title is based on a Tax Deed, also quit claim deeds from E. Christine Brauer and E. Christine Brauer as guardian for Carl Fredrick Brauer. Am afraid that the Federal Land Bank will not accept the title, as your title is based on a tax deed and the record does not show that E. Christine Brauer nor Carl Fredrick Brauer had any interest in the land.

[Signed] R. E. Swendseid.”

To which the defendant Reishus wrote as follows:

“There should be nothing wrong with the title. The actual owner was Carl Brauer formerly of Minot. After his death the final decree of distribution distributed the property including this land to E. Christine Brauer and their son Carl.

The deed from Mrs. Brauer to me conveyed such interest through the quit claim deed. The decree was recorded, I am sure, in Mountrail County. If not a copy can be secured from Minot.

Mr. Wyckoff passed on the title for Mr. Peterson at the time I sold.

[Signed] S. S. Reishus.”

Thereafter, and on the 2d of May, 1934, the plaintiff brought an action to quiet title to said land, alleging that he is the owner in fee simple, and upon findings of fact and conclusions of law in said action judgment was entered holding that the plaintiff, August F. Peterson, was at the time of the commencement of said action, and is now, the absolute owner in fee simple of said land, and that E. Christine Brauer, Mable S. Dock, Lillian C. Brauer, Evelyn F. Brauer, Carl Fredrick Brauer, Herman Wilhelm Brauer, Carl W. Brauer, and all persons unknown claiming any estate or interest in, or lien or incumbrance upon the property described in the complaint, and each and all of them, have no right, title, or interest in or to said land and premises or any part thereof. Thereafter the plaintiff brought this action against the defendants for his costs and expenses in the action to quiet title.

It was stipulated that, if the plaintiff is entitled to recover, he is entitled to recover the sum of $85.

There was a jury trial in the district court, and, after both parties rested, each moved for a directed verdict, and stipulated that the court excuse the jury, and findings and conclusions be made by the trial judge. The jury was excused, and the trial judge found as facts that there was no breach of warranty; that the plaintiff went into actual possession of said land on the 15th of October, 1926, and ever since has held the exclusive, undisturbed, and peaceable possession of said land; that S. S. Reishus acquired title to the land by virtue of and through a certain tax deed, dated on the 18th day of May, 1925, pursuant to a tax sale certificate of sale for delinquent and unpaid taxes on said land, which deed was and is regular on its face, and is the usual form of tax deed, and which deed conveyed to the said S. S. Reishus an absolute fee-simple title to the land; that the said S. S. Reishus acquired title to the said land by virtue of and through a certain other tax deed, executed and delivered to the said Reishus for delinquent and unpaid taxes on said land and premises, dated on the eighteenth of May, 1925, pursuant to a tax sale certificate of sale held by the said S. S. Reishus, which said tax deed was and is regular on its face and is the usual form of tax deed, and conveyed to the said S. S. Reishus an absolute fee-simple title to the said land; that either or both of the said tax deeds were in all things regular and legal, and either or both of them were entirely sufficient to convey to the said S. S. Reishus the fee-simple title to the land therein and herein described. The record in the action to quiet title is in evidence, and the court in the instant case finds that the findings and conclusions in said action to quiet title state in effect that the said August P. Peterson was the owner in fee simple of said land upon which judgment was duly entered, quieting title to said land in the plaintiff, August P. Peterson. The court held as a conclusion of law that, by the execution and delivery of the warranty deed from S. S. Reishus and Josephine Reishus to August P. Peterson, the said August P. Peterson became the absolute owner in fee simple of said premises, and the plaintiff has failed to prove that any of the said covenants in the said warranty deed were broken; and that the plaintiff's action should be dismissed. Upon such findings and conclusions judgment was duly entered, and from which judgment the plaintiff duly appeals.

[1][2] The only issue involved is, Was there a breach of any of the covenants in the warranty deed?

The only objection urged against the title by the attorney for the Federal Land Bank was against the tax title. The tax deeds introduced in evidence as Exhibits 1 and 2 are in the regular form required by the statute and are valid on their faces. There are no specific defects in the tax titles pointed out in the complaint, and there is no evidence showing any defect in either one of the tax deeds or the tax records. In his letter of the 31st of March, 1934, to S. S. Reishus, in reference to the tax deeds, Mr. Swendseid has this to say, namely: “On an examination of the abstract for the purpose of a Federal Land Bank Loan, I find that your title is based on a Tax Deed. * * * Am afraid that the Federal Land Bank will not accept the title. * * *”

Mr. Swendseid, testifying at the trial, said: “During the year 1934 I was acting as title examiner for the Federal Land Bank of St. Paul. The abstract of title was delivered to me by August P. Peterson for the purpose of examining it to see whether or not it would be acceptable to the Federal Land Bank for a Federal loan. I examined it. It was not acceptable. The objection raised is that August P. Peterson held title through a...