Power v. Bowdle

• Decision Date: 19 January 1893
• Citation: 54 N.W. 404,3 N.D. 107
• Parties: POWER v. BOWDLE.
• Court: North Dakota Supreme Court

3 N.D. 107

54 N.W. 404

POWER

v.BOWDLE.

Supreme Court of North Dakota.

Jan. 19, 1893.

Syllabus by the Court.

1. In an action under section 5449, Comp. Laws, to determine adverse “ estates and interests” in real estate, the defendant may be answer, in addition to a denial of plaintiff's title, allege facts which show title in himself, and ask that such title be quieted and confirmed by the court. Such new matter, when properly pleaded, constitutes a counterclaim, within the meaning of subdivision 1, § 4915, Comp. Laws. Such counterclaim constitutes a cause of action in favor of the defendant, and against the plaintiff, which is “ connected with the subject of the action.”

2. To such counterclaim, if not demurred to. the plaintiff must respond by a reply, and, if none is served, the defendant may move for judgment. Comp. Laws, §§ 4918, 4919. But where both parties at the trial treat the new matter as traversed and at issue, and evidence upon the same is put in without objection, and the court, without objection, proceeds to litigate and determine the subject-matter of the counterclaim, it will be too late, after judgment, to raise the point that no reply was served. In such case the reply is waived by conduct.

3. In said statutory action, “estates and interests” in lands are not synonymous in meaning with “liens.” Mere “liens” are not primarily within the purview of the statute; but where a defendant sets out new matter as a counterclaim, which embraces a “lien” upon the land, and asks the court to pass upon the same, and such new matter is heard upon the merits, and is determined by the court, without objection, it will be too late, after judgment, for the defendant to raise the technical objection that “liens” cannot be litigated in such an action.

4. The statute requires parcels of land listed in an assessment roll, which consists of parts of sections, to be particularly described. Sections 1544, 1582, Comp. Laws. Accordingly, held, that tracts of land in an assessment roll, consisting of parts of sections, described as follows, viz.: Name of owner, ------; section ------; town ------; range ------, -followed by a statement of the number of acres, is insufficient, because the part of the section is not particularly described. The fact that such description may not mislead the owner is not alone enough to validate it.

5. Following the rule laid down in Powers v. Larabee, 49 N. W. Rep. 726, 2 N. D. 141, and Keith v. Hayden, 2 N. W. Rep. 495, 26 Minn. 212,held, that the combination of letters and figures given below, and all others of similar character, in the assessment rolls in question, are insufficient and invalid as descriptions of parts of sections of land, viz.: NW⁴; NW⁴ of NE⁴; NE SW; W² SW. Such symbol writing is not English as it is ordinarily used, and is without the sanction of any general usage among the masses of the people. Hence the symbol-writing descriptions cannot be upheld as a basis of taxation, or as a means of building up and perpetuating title to real estate under the revenue laws.

6. Courts and judges rest under an official obligation to notice and recognize, without proof, such facts and matters as are so notorious as to be generally known. Among other things, courts must judicially notice the vernacular language, and such abbreviations and symbols of ideas as have, from immemorial use, been adopted by the people generally, and thereby have become a part of the common usage of the language. When this occurs, i. e. when a given usage of language ceases to be a mere special usage, limited in its sphere, and emerges into general use among the masses of the people, the state, either by its courts or its legislature, will adopt and legalize such usage, and thereby add the same to the body of the common or of the statute law, as the case may be. Thereafter the existence of such general usage of language is not to be left to the hazards of nisi prius trials, to be proved or disproved, as testimony may preponderate one way or the other. Its existence is evidenced by the statute or by judicial precedents, as the case may be.

7. The trial court, against objection, allowed defendant to serve an amended answer, embracing, among others, the following averments: “That said abbreviations and combinations of letters and figures were in general use in Barnes county, North Dakota, and throughout the state of North Dakota, and throughout those parts of the United States where the government system of survey is used for the descriptions of parts of sections of lands, and were generally understood by the people and taxpayers of said Barnes county and the state of North Dakota, and in those portionsof the United States where the government system of survey is used.” Held, that the ruling was prejudicial error.

8. In valuing land for taxation, the assessor may refer to descriptions or lists of land furnished either by the county commissioners under section 1544, Comp. Laws, or by individuals under section 1554, Id., but the assessor is officially responsible for the legal sufficiency of the description of all parcels of real estate returned by him. Upon that official alone devolves the entire responsibility of making out and delivering the roll containing a list of taxable lands. Accordingly, held, where a parcel of land is attempted to be described in the assessor's return, but such description is inherently and fatally defective, the same cannot be rendered valid and sufficient by showing that it corresponds to a description furnished the assessor by the owner, or by any one else. The public and bidders at tax sales, as well as owners, are interested in the descriptions of real estate in tax records and tax titles. Such descriptions, to be sufficient, must point out parcels of land clearly and distinctly by the use of terms commonly understood.

Cross appeals from district court, Barnes county; Roderick Rose, Judge.

Action by James B. Power against A. M. Bowdle, to quiet title, under Comp. Laws, § 5449. From a judgment for defendant, both parties appeal. Reversed.

J. E. Robinson and Chas. A. Pollock, for plaintiff. Newman & Resser, for defendant.

WALLIN, J.

Plaintiff was the owner of lands described in the complaint, and situated in Barnes county. Said lands were sold at tax sale in the years 1887, 1888, and 1889 for the alleged taxes of 1886, 1887, and 1888. Defendant was the purchaser of the lands at each and all of said sales, and tax certificates evidencing the sales, respectively, were delivered to him in due form. No redemption from either of the sales was ever made. The time for redemption from the first sale (1887) having expired, the county treasurer or said county made out in due form, and delivered to defendant, tax deeds of said lands, based on said tax sale of 1887. This action is brought to quiet title under section 5449, Comp. Laws. Defendant by his amended answer denies plaintiff's ownership of the land, and by way of counterclaim alleges title in himself by virtue of said tax deeds, and also sets up the sales to him of said lands for the taxes of 1887 and 1888, as already stated. Defendant demanded as his relief that the title of the lands be quieted and confirmed in himself, and further demanded that, in the event of the sale being declared void, plaintiff be required to pay all of said taxes with interest, as a condition of plaintiff's relief.

In view of the conclusion at which we have arrived, it will be unnecessary to consider all of the many points arising upon the record. We will, however, consider certain points of practice which are incidentally involved, and which affect the judgment that must be entered below. No reply to the answer was served, nor did defendant move for judgment as for want of a reply. The trial was manifestly conducted upon the theory that all the allegations of the answer which were pleaded as a counterclaim were at issue. Testimony was offered, without objection, to prove and disprove the averments of the answer, and the court, without objection or protest, made its findings of facts and conclusions of law upon the subject-matter of the counterclaim. In this court the claim is made by defendant's counsel that, inasmuch as plaintiff did not reply to the counterclaim, he admitted all the facts stated therein; citing sections 4919, 4933, Comp. Laws. Counsel say: “The question to be determined on the appeal then is, do the facts stated in the defendant's counterclaim entitle him to the relief demanded?” We think the new matter pleaded in the answer constitutes a counterclaim, within the meaning of subdivision 1, § 4915, Comp. Laws. The new matter constitutes a cause of action in defendant's favor and against the plaintiff, and such new matter is “connected with the subject of the action.” Bliss, Code Pl. § 374; Jarvis v. Peck, 19 Wis. 74;Eastman v. Linn, 20 Minn. 433, (Gil. 387,) and cases cited. A reply was requisite under the statute, but a reply may be waived, and we are of the opinion defendant waived a reply by proceeding at the trial to treat the new matter in the answer as being traversed and at issue without a reply. Bliss, Code Pl. § 397; Netcott v. Porter, 19 Kan. 131;Matthews v. Torinus, 22 Minn. 132.

Another point raised in this court, but which does not appear to have been suggested below, is this: Counsel for defendant claim that “all considerations as to the 1887 and 1888 taxes are eliminated.” The position taken is that, the action being brought under section 5449, Comp. Laws, the court can determine only adverse “estates and interests,” and that a mere “lien,” such as is evidenced by the tax certificates, cannot be litigated. Defendant cites Bidwell v. Webb, 10 Minn. 59, (Gil. 41,) which sustains the point, and holds under a statute which, when the case was decided, was similar to ours, that “liens cannot be determined in such an action.” But in later cases it has been held in Minnesota that where a defendant elects to have...