Power v. Kitching

• Decision Date: 17 May 1901
• Citation: 86 N.W. 737,10 N.D. 254
• Court: North Dakota Supreme Court

86 N.W. 737

10 N.D. 254

JAMES B. POWER v. JOHN KITCHING

Supreme Court of North Dakota

May 17, 1901

Appeal from District Court, Griggs County; Glaspell, J.

Action by James B. Power against John Kitching. From a judgment in favor of defendant, plaintiff appeals.

Affirmed.

J. E Robinson, for appellant.

The act relating to titles to real property is void. § 61 Const.; State v. Nomland, 3 N.D. 427; Richard v Stark Co., 8 N.D. 392; Divet v. Richland Co., 8 N.D. 65. The tax deed is void because not signed officially. The signing of the name without the official designation is the same as if the signature had been omitted, so far as any official validity is concerned. 2 Blackwell on Tax Titles § § 865, 871. The deed shows the sale made on November 1, 1887, and not on October 3, 1887,--the day fixed by law. § 1621, Comp. Laws; Salmer v. Lathrop, 10 S.D. 224. The deed is not given under the seal of the county treasurer, and it does not recite facts showing that the sale was made to the county because there were no other bidders, who offered to pay the amount of the taxes. Babbitt v. Johnson, 15 Kan. 252; Morton v Friend, 13 Kan. 339; Magill v. Martin, 14 Kan. 1610; Martin v. Wilson, 28 Kan. 513; Salmer v. Lathrop, 10 S.D. 226. Since obtaining the tax deed defendant has paid all the taxes charged against the land. But to recover the taxes paid he should have alleged and proved the assessment of the property for taxation and the levy of a valid tax; Greenland v. Swenson, 4 N.D. 532; O'Neil v. Tyler, 3 N.D. 53. As the sale was not based on a valid assessment defendant had no lien on the land, and no right to pay even valid taxes so as to recover the same from the owner of the land. McHenry v. Brett, 9 N.D. 68, 81 N.W. 65.

Cole & Martinson and Benjamin Tufte, for respondent.

The title of the statute is sufficient to meet all constitutional requirements. Nebraska Loan & Building Assn. v. Perkins, 85 N.W. 67; Martin v. Tyler, 60 N.W. 392; Gillett v. McCarthy, 25 N.W. 637; Plummer v. Kennedy, 40 N.W. 433; Fort Street Depot Co. v. Morton, 47 N.W. 227; Western Union Tel. Co. v. Lowry, 49 N.W. 707; Christie v. Inv. Co., 48 N.W. 94; People v. Gobles, 35 N.W. 91; Bissell v. Heath, 57 N.W. 585; Finnegan v. Building Assn., 53 N.W. 1150; State v. Paige, 11 N.W. 495; Ripley v. Evans, 49 N.W. 904; Canal Street Co. v. Paas, 54 N.W. 907; Lynott v. Dickerman, 67 N.W. 1143; Kleckner v. Clerk, 63 N.W. 469; State v. Bemis, 64 N.W. 348; State v. Moore, 67 N.W. 56; Affholder v. State, 70 N.W. 550; State v. Forkner, 62 N.W. 772; State v. Morgan, 48 N.W. 314. The tax deed, though void in fact for want of a valid assessment, was prima facie good. The tax deed is color of title. Adams v. Osgood, 84 N.W. 257; Lantry v. Parker, 55 N.W. 552; Murphy v. Doyle, 33 N.W. 220; Sater v. Meadows, 27 N.W. 481; Hunt v. Gray, 41 N.W. 14; Rickter v. Butler, 48 N.W. 407; Gattling v. Lane, 22 N.W. 227; Haywood v. Thomas, 22 N.W. 460. It is immaterial under the statute of limitations, whether the tax deed be valid or void upon its face. It will in any event give color of title. If it were necessary to produce a regular deed and prove compliance with all the preliminary requisites, the statute of limitations would be unnecessary and useless. Leffingwell v. Warren, 2 Black. 559; Edgerton v. Bird, 6 Wis. 527; Hill v. Kricke, 6 Wis. 442; Sprecker v. Wakely, 11 Wis. 432; Lindsay v. Fay, 25 Wis. 460; Oconto Co. v. Jerrard, 50 N.W. 591; McMillan v. Wehle, 55 Wis. 685, 13 N.W. 694; Whittlesey v. Hoppenyan, 39 N.W. 355; Deputron v. Young, 134 U.S. 241, 10 S.Ct. 539; Gatling v. Lane, 22 N.W. 227; Smith v. Shattuck, 12 Ore. 362, 7 P. 335; Harrison v. Spencer, 51 N.W. 642; Ricker v. Butler, 48 N.W. 407; Dickinson v. Breedin, 30 Ill. 279; Wright v. Mattison, 18 How. 56; Hall v. Law, 102 U.S. 466; Brooks v. Bruyn, 35 Ill. 392; Maxson v. Huston, 22 Kan. 643; Ensign v. Barse, 107 N.Y. 329, 14 N.E. 400; Thomas v. Stickle, 32 Ia. 71; Peck v. Comstock, 6 F. 22; Desty on Taxation, Vol. II, 1884 Ed. § 149, p. 961; Caruthers v. Weaver, 7 Kan. 110; Sapp. v. Morrill, 8 Kan. 677; Cain v. Hunt, 41 Ind. 466; Seigneuret v. Fahey, 27 Minn. 60; Buckley v. Taggart, 62 Ind. 236; Foster v. Lentz, 86 Ill. 415; Busch v. Huston, 75 Ill. 343; Stubblefield v. Borders, 92 Ill. 279; Piatt v. Goodell, 97 Ill. 88; Wistanley v. Meachem, 58 Ill. 97; Dalton v. Lucas, 63 Ill. 337; Webster v. Webster, 55 Ill. 325; Hardin v. Crate, 60 Ill. 215; Degraw v. Taylor, 37 Mo. 310; Moss v. Shear, 25 Cal. 38; Blackwood v. Van Vliet, 30 Mich. 118; Pepper v. O'Dowd, 39 Wis. 538; Dunphy v. Auditor General, 82 N.W. 55.

OPINION

WALLIN, C. J.

The plaintiff in this action sues to recover the possession and the value of the use of a quarter section of land situated in the county of Griggs. It is conceded that plaintiff is the fee-simple owner of the land, unless the defendant has acquired title thereto by virtue of his claim of title pleaded in the answer to the complaint. The defendant alleges, in effect, that he is the owner and holder of a tax deed which describes the land, a copy of which is annexed to and made a part of the answer. Said deed is dated on November 2, 1889, and the same was recorded on said date. The deed named the defendant as grantee therein, and embraces a description of the land in question. It purports to have been issued pursuant to a tax sale made in Griggs county on November 1, 1887, for the taxes charged against the land in 1886. The deed is in the form prescribed by § 1639, Comp. Laws, and recites on its face that it is made "between the territory of Dakota, by Knud Thompson, the treasurer of said county, of the first part, and the said John Kitching, of the second part." Defendant alleges title and ownership under said deed, and that he has been in the quiet possession of said land under said deed ever since the 2d day of November, 1889, and that the said possession of the land by the defendant has been continuous from said date, and the same has been open, notorious, and peaceable. The answer further states that the defendant has regularly and fully paid all taxes assessed against said lands since said tax deed was issued to him. Plaintiff served a reply denying the allegations of the answer, and alleging that said tax deed is void on its face, and void because the land was not described in the assessment roll or tax list of 1886, and that no assessor's oath was annexed to the roll in said year. The defendant concedes that the assessment of 1886 is void, and the trial court so found. Upon these issues the case was tried to the court, and judgment was entered quieting the title in the defendant. Plaintiff appeals from the judgment, and demands a trial anew in this court. The evidence offered below is in the record, and we find no conflict in the same upon any point which we deem material to a proper decision of the case.

The tax deed was issued and recorded, as already stated, and the evidence shows conclusively that the defendant claimed title and ownership of the land under the deed. Defendant fenced a part of the land, and farmed another portion. He also placed buildings upon the land, and at the time of the trial resided upon the land. His occupation for farming purposes is shown to have been continuous for a period of over ten years after he received the deed, and the evidence is undisputed that the plaintiff never attempted to interfere with the defendant's possession, and that plaintiff never claimed the title of the land, to defendant's knowledge, until this action was commenced on August 13, 1900. Defendant claims title under said deed, and by virtue of his continuous adverse possession of the land for a period of over ten years, together with payment of all taxes charged against the land during said period, and bases his claim of title upon Chap. 158 of the Laws of 1899. See Rev. Codes 1899, § 3491a. This statute was approved March 8, 1899, and took effect July 1, 1899. Under the terms of said statute the defendant's title to the land did not mature or become perfect until November 2, 1899. There was therefore a period of over seven months after the approval of the law by the governor, and a period of over four months after the law took effect, within which an action might have been brought against the defendant to determine his adverse claim of title. Said chapter, therefore, when applied to conditions established in this case, did not operate to unreasonably abridge the period within which an action might be brought to determine defendant's claim of title. A purchaser at a tax sale has no vested right in the statute of limitations in force at the date of sale. The statute may be changed and shortened by subsequent legislation, provided, always, that a reasonable time is allowed within which actions may be brought. See a full discussion of this point in Osborne v. Lindstrom, 9 N.D. 1, 81 N.W. 72, 46 L. R. A. 715; Keith v. Keith, 26 Kan. 26.

But appellant's counsel claims that the statute embraced in Chap. 158, Laws 1899, is unconstitutional, and hence void under § 61 of the State Constitution, which is follows: "No bill shall embrace more than one subject, which shall be expressed in its title," etc. In support of this point counsel cites a number of cases decided by this court in which this section has been construed. We think none of the cases are in point, because in all of them the facts are wholly unlike those in the case under consideration. For the purposes of a decision, each case must stand upon the language employed by the legislature, and must be governed by its own peculiar facts and conditions. But the authorities are uniform to the point that similar constitutional restrictions upon legislative action should have a liberal construction in the courts. A narrow...