Powers v. First Nat. Bank of Bottineau

• Decision Date: 03 October 1906
• Citation: 109 N.W. 361,15 N.D. 466
• Parties: POWERS v. FIRST NAT. BANK OF BOTTINEAU et al.
• Court: North Dakota Supreme Court

15 N.D. 466

109 N.W. 361

POWERS

v.FIRST NAT. BANK OF BOTTINEAU et al.

Supreme Court of North Dakota.

May 15, 1906.

Rehearing Denied Oct. 3, 1906.

Syllabus by the Court.

In an action to determine adverse claims to real estate arising out of tax certificates on which taxes are shown to be justly due, a court of equity will not grant the plaintiff relief until he pays or offers to pay the taxes justly due.

The mere fact that the rule of caveat emptor applies to tax-sale purchasers is not ground for not exercising in behalf of such purchasers the usual principles in equity actions.

In an action to determine adverse claims simply in which the statute provides a form of complaint, the complaint need not allege a payment or offer of payment of the taxes justly due, but before granting any relief the court should require such payment as a condition of granting any relief.

Appeal from District Court, McHenry County; L. J. Palda, Jr., Judge.

Action by Frederick A. Powers against the First National Bank of Bottineau and others. Judgment for plaintiff, and defendants appeal. Reversed and dismissed.Bosard & Bosard and A. M. Christianson, for appellants. Brennan & Gray, for respondent.

MORGAN, C. J.

The plaintiff brings an action against McHenry county and one W. H. McIntosh, seeking to cancel and annul four tax certificates issued on a tax sale in 1900 for the delinquent taxes of 1899. The defendant bank is the holder of such certificates under an assignment thereof from said McIntosh, the purchaser at the sale, and was substituted as defendant in place of said McIntosh at the trial. The complaint alleges that plaintiff is the owner of the land, which was sold for such delinquent taxes in separate tracts, comprising in all 480 acres; that the defendants claim interests and liens in and against said real estate adverse to the plaintiff “under alleged tax sales, levies, and assessments for the years 1895, 1896, 1897, 1898, and 1899, all of which are void”; that the claim of the defendants is without any right whatever, and that neither of said defendants has any interest, lien, or right in or to any portion of said lands; “that the defendant McIntosh claims to be the holder and owner of alleged tax-sale certificates for the tax sale of 1900 for alleged taxes of the year 1899 on said lands, being tax certificates numbered 41, 44, 46, and 47, and will apply for and obtain deeds from defendant county of McHenry under said certificates for said lands unless the said defendants and each of them be enjoined and restrained by this court from taking or issuing deeds thereunder, and that in case of the issue of any deed or deeds to any of said lands the title of plaintiff to said lands will be clouded, and he will be irreparably damaged; that all of said alleged taxes and tax certificates are void.” The prayer for relief asks that the defendants and each of them be required to set forth the nature of their claims, and that a decree be entered adjudging that the defendants have no interest or estate in said lands, and that plaintiff's title to said lands be declared valid, and that all of said tax certificates be declared null and void; “that said defendants, and each of them, be forever enjoined and debarred from asserting any claim whatever in or to said land by or under any of said alleged tax-sale certificates, and that plaintiff have such other and further relief as shall be agreeable to equity,” etc. The defendant bank answered, and alleged that the taxes under which the lands were sold under a regular sale for valid taxes were duly levied in the year 1899, and that the plaintiff had never paid any of said taxes, or offered to pay any of them, as a condition precedent to setting aside said certificates.

The complaint is not strictly one for the determination of adverse claims only, as it asks for an injunction against the county officials and the owner of the certificates to prevent the county from issuing a deed on said certificates and the holder from accepting such deed. These certificates are pleaded, and the court is asked to cancel them on the ground that they are invalid. The precise ground of the alleged invalidity of the certificates is not set forth in the complaint, and need not be set forth in an action to determine adverse claims. The grounds claimed to have been shown by the evidence are: (1) That the county levy for 1899 was made by percentages, and not in specific amounts. (2) That no proper designation of a newspaper in which the delinquent tax list was to be published was made by the county commissioners.

We do not deem it necessary to consider the question whether these alleged omissions rendered the subsequent tax proceedings void or not. It may be conceded for the purposes of this case that a levy by percentages or mills was a void levy, but from that it will not follow that all the taxes levied for that year were void. The levy by percentages pertained to the county taxes only. The state and township levies were not affected thereby. Hence it necessarily follows that some of the taxes under which the land was sold are not void, nor are they claimed to be void. In the absence of such showing, they are presumed to be valid, and the plaintiff will not be relieved from the entire burden of taxation by a court of equity upon a showing that some of the taxes are so irregularly imposed as to render such portion void.

The complaint sets forth an equitable cause of action. It asks for an injunction against the county officials, forbidding them from proceeding to deliver to the bank a deed upon the tax...