Power v. Bowdle
| Decision Date | 19 January 1893 |
| Citation | 54 N.W. 404,3 N.D. 107 |
| Court | North Dakota Supreme Court |
Cross appeals from District Court, Barnes County; Rose, J.
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 C. A. Pollock, for appellant.
When a custom has become so established as to become a part of the law, the court will act upon it, without requiring it to be proved. Consegna v. Millings, 1 Peters N. S. C. C. 225. Courts will take judicial notice of whatever is generally known or generally ascertainable within their jurisdictions. Brown v. Piper, 91 U.S. 37. But parole evidence is not admissable to prove as a custom a local usage changing the significance of the language. Powers v. Larabee, 49 N.W. 726, S. C. 2 N.D. 141.
Where land is sold for taxes it is essential that every fact necessary to give jurisdiction should appear on the face of the record. Thatcher v. Powe, 6 Wheat., 119; McClung v. Ross, 5 Wheat., 116. Every essential proceeding in the course of a levy of taxes, must appear of record in written and permanent form in the records of the bodies authorized to act upon them. Cooley on Taxation, 247 Desty on Taxation, 1087.
Newman & Resser, for respondent.
Defendant pleads title under his tax deed by way of counterclaim. He seeks to defeat plaintiff's title by an equitable cross action. His counterclaim is proper and well pleaded. Pomeroy's Remedies, § 746; Jarvis v. Peck, 19 Wis. 84.
The fact that the statute makes tax deeds prima facie evidence of the regularity of all proceedings and conclusive evidence of the facts recited does not relieve defendant from pleading such proceedings and facts. The statute furnishes a rule of evidence and not of pleading. Russell v. Mann, 22 Cal. 132; Himmelman v. Danos, 35 Cal. 441. Parole evidence is admissable for the purpose of applying the description to the land and identifying the land which is described, 1 Greenl. Ev. 286 and 301, n.; Stewart v Carter, 18 N.W. 98; Ames v. Lowry, 15 N.W. 247; Judd v. Anderson, 1 N.W. 677; Knote v Caldwell, 23 P. 625; Welty on Assessments 170. Descriptions furnished by the United States surveys of the public lands may be used in making assessments. Welty on Assessments 173; Jenkins v. McTigue, 22 F. 148; McQuade v. Jaffrey, 50 N.W. 234; Taylor v. Wright, 13 N.E. 529; Hodgson v. Burleigh, 4 F. 111; Gilfillan v. Hobart, 24 N.W. 342; Judd v. Anderson, 1 N.W. 678; Atkinson v. Hinman, 7 Ill. 437. A description by which a competent svrveyor can identify the land is sufficient. Law v. Peo., 80 Ill. 268; Fowler v. Peo., 93 Ill. 116, Peo. v. Stahl, 101 Ill. 346.
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 of 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 § 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 effect 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 § § 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 § 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 his own case determined in such action, and sets out the facts of his case and asks judgment upon such facts, and the court without objection, pronounces judgment thereon upon the merits, it will then be too late for the defendant to raise any technical objection based upon the form of the action. Hooper v. Henry, 31 Minn. 264, 17 N.W. 476; Mitchell v. McFarland, 47 Minn. 535, 50 N.W. 610. The reasoning of these later cases is, in our judgment, unassailable, and we therefore rule that all questions arising out of the tax sales and certificates of 1888 and 1889 were properly before the trial court, and are therefor before this court for review.
After a trial before the court, numerous findings of law and fact were filed. It was admitted at the trial, and the court found, that the assessment roll of Barnes County, as returned in each of the years, was in the "words, letters, figures, and form" as follows:
ASSESSOR'S BOOK.
WSW
3
142
58
337
James B. Power
NE, ESW, WSE
9
142
58
320
James B. Power
NE, Eof SE
21
142
58
240
James B. Power
NWNE, ENW, SW
NW
35
143
58
160
James B. Power
NW
25
143
58
160
C. H. Davis
Wof SE
15
138
58
80
A. Sargent
Eof SW
15
138
58
80
ASSESSOR'S BOOK.
EXHIBIT "A."
Assessed for the Year 1886.
James B. Power
350
280
7
James B. Power
1200
1010
39
James B. Power
1000
960
17
James B. Power
900
720
17
James B. Power
600
480
39
James B. Power
600
480
39
C. H. Davis
240
240
32
A. Sargent
240
240
32
Against the objection of plaintiff's counsel who excepted to the ruling and assigns error upon it in this court, the defendant served an amended answer, which, among other allegations, contained the following: ...
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