Powers v. Larabee

• Decision Date: 01 August 1891
• Docket Number: 6731
• Citation: 49 N.W. 724,2 N.D. 141
• Court: North Dakota Supreme Court

49 N.W. 724

2 N.D. 141

JAMES B. POWER, Plaintiff and Appellant v. J. D. LARABEE, Defendant and Respondent

No. 6731

Supreme Court of North Dakota

August 1, 1891

Rehearing Denied Aug. 29, 1891.

APPEAL from district court, Barnes county; Hon. RODERICK ROSE Judge.

Action to quiet title. Judgment for defendant. Plaintiff appeals. Judgment modified.

Relief demanded by the complaint granted, plaintiff recovered costs and disbursements.

DESCRIPTION.

SECTION.

TOWNSHIP.

RANGE.

W. 2 of W. 2

7

57

E. 2 of E. 2

13

58

W. 2 of S. E.

15

138

58

N. 2 N. W.

3

139

58

-- Held, that said attempted description of the lands is insufficient as a basis of taxation, and that no valid assessment was made or could be made on such pretended description. The description is not expressed in common language; nor are the characters and abbreviations employed such as are used by conveyances in describing real estate nor do the people generally use such a combination of words letters and figures in referring to or describing land. A description of real estate is essential to its assessment, and, there being no sufficient description in this case, there is no assessment, and consequently no tax.

2. The county board of the county where the lands are situated did not assemble as a board of equalization in either of the years in question on the day fixed by statute nor on the following day. Held, that the omission to hold a session at the time and place designated by law also operated to defeat the alleged taxes. The board of equalization cannot lawfully assemble at a time and place other than that fixed by statute. The public is not chargeable with notice of any meeting of such board except that designated in the statute. Taxpayers are invited by the law to attend at an appointed session of the board, and present to the board any grievances which they may have on account of assessments made on their property. No other opportunity for a hearing is given, and, if no session is had at the time and place prescribed, there is no chance to be heard at all. This is fatal to the tax in all cases where the law bases the tax upon an official valuation, and in terms gives the taxpayer an opportunity to be heard. Actual injury need not be shown; the law will presume an injury on grounds of public policy. The items paid by defendant at the tax sale and in subsequent years as taxes were not taxes in law, nor within the meaning of § 75, c. 28, Pol. Code (Comp. Laws, § 1640); and hence it was error to require, as the trial court did require, that said sums should be paid by plaintiff to defendant as a condition upon which the worthless tax deed would be vacated as a cloud on plaintiff's title. BARTHOLOMEW, J., dissenting.

J. E. Robinson and Chas. A. Pollock, for Appellant.

The tax sale and tax deed being confessedly void, there is no presumption of the regularity of any anterior proceeding. A tax deed loses its character as evidence when it is shown that in any essential particular the proceedings on which it depends were irregular. Lacy v. Davis, 4 Mich. 140-157; Case v. Dean, 16 Mich. 12, 34, 37; Amberg v. Rogers, 9 Mich. 332; Grosbeck v. Sealy, 13 Mich. 414; Rayburn v. Kuhl, 10 Iowa 92; Cooper v. Shepardson, 51 Cal. 299; Bidleman v. Brook, 28 Cal. 75; Thompson v. Ware, 43 Iowa 453; Butler v. Delano, 42 Iowa 350; Williams v. Kirkland, 13 Wall. 306; French v. Edwards, 13 Wall. 514; Blackwell on Tax Titles, 83 D. Note; 2d Desty on Taxation, 961, 969; Johnson v. Elwood, 53 N.Y. 431. The assessment was void on account of there not being a proper description of the lands. Even a tax judgment is void that described land as S 2 N E 4 of a designated section, town and range. Keith v. Hayden, 26 Minn. 212; Tidd v. Rines, 26 Minn. 208. There was no board of equalization. When the statute fixes a time for the meeting of the board of review, and it fails to meet, or for return and filing of the assessment roll for inspection, and it is not filed, the proceeding becomes ineffectual. Wiley on Assessments, 224 and 154; Blackwell on Tax Titles, 131, 118, 122; French v. Adams, 13 Wall. 506. Notice and an opportunity for a hearing is indispensible. Wiley on Assessments, § 154. And see Pierre Water Works v. County of Hughes, 37 N.W. 733. There was no record of any levy of taxes. Every essential proceeding in the course of a levy of taxes must appear in some written and permanent form in the record of the bodies authorized to act upon them. Cooley on Taxation, 247; Desty on Taxation, 1087; Nosme v. White, 29 Mich. 59. There was no legal sale for the reason that the amount of taxes due, given in the notice prescribed by statute, was only stated by placing opposite the description of each tract, under the heading "amount," certain figures or numerals without anything to show what they indicated. That was clearly insufficient. Wood v. Freeman, 1 Wall. 399; Bradley v. Seaman, 30 Cal. 612; Lawrence v. Fast, 20 Ill. 338; Lane v. Bommelmann, 21 Ill. 143; Eppinger v. Kirby, 23 Ill. 469; Wiley on Assessments, § 225; Cooley on Taxation, 2d Ed. 411; People v. Savings Bank, 31 Cal. 132; Tidd v. Rines, 26 Minn. 208. The trial court found that there was no return to the sale. There must be a lawful return to support a statutory sale and conveyance. Desty on Taxation, 857; Upton v. Kennedy, 36 Mich. 215. An agreement or understanding between bidders at a tax sale, either express or tacit, that they shall take turns in bidding and not compete against each other, is a fraud upon the law and renders the sale void. Blackwell on Tax Titles, 111.; State v. Maxwell, 6 Wall. 276; French v. Edwards, 13 Wall. 506; Kerr v. Allen, 31 Iowa 578. In this case tender or payment is not required. Barker v. Evans, 27 Minn. 92; Dawson v. Life Insurance Co., 27 Minn. 411; Baker v. Kelly, 11 Minn. 370; Harper v. Row, 53 Cal. 238; Homestead Co. v. Railroad Co., 17 Wall. 153; Conway v. Cable, 37 Ill. 82; Philleo v. Hiles, 42 Wis. 531; 2d Desty on Taxation, 105.

George K. Andrus and Edgar W. Camp, for respondent:

A description which is insufficient to make the tax title good, may be sufficient to give the purchaser at the tax sale a lien for the sum paid. Cooper v. Jackson, 99 Ind. 566; State v. Casteel, 11 N.E. 219; Reed v. Earhart, 88 Ind. 159; Milliken v. City of Lafayette, 20 N.E. 847; Ford v. Kolb, 84 Ind. 198; Sloan v. Sewell, 81 Ind. 180. The action was in effect one in equity. Steele v. Fish, 2 Minn. 153; State v. Batchelder, 5 Minn. 223; Brand v. Wheaton, 52 Cal. 430; Leet v. Rider, 48 Cal. 623; Auld v. McAllister, 23 P. 165; Wygart v. Dahl, 26 Neb. 735. See also Clark v. Smith, 13 Pet. 195; Holland v. Challen, 110 U.S. 15; Lamb v. Farrell, 21 F. 5; Basey v. Gallager, 20 Wall. 770.

WALLIN, J. BARTHOLOMEW, J., CORLISS, C. J., (concurring specially.)

OPINION

The opinion of the court was delivered by

WALLIN J.

This is an action to quiet title, brought under § 5449, Comp Laws. The complaint alleges in effect that the plaintiff is the owner in fee-simple of certain lands described in complaint, situated in the County of Barnes; that defendant claims an interest in the land adverse to plaintiff, and asks that such adverse claim of the defendant be determined and adjudged to be void. The defendant's answer denies plaintiff's ownership and alleges ownership in himself, and as an affirmative defense states in substance that on the 3d day of October, 1887, the lands were sold to the defendant for the taxes assessed upon them for the year 1886; that in pursuance of such sale the county treasurer of said county of Barnes issued a tax certificate therefor, and subsequently, to-wit, in October, 1889, said county treasurer executed and delivered a tax deed thereof to the defendant. A copy of such deed is annexed to and made a part of defendant's answer. The answer further states that defendant paid out at said tax sale as taxes and for said tax certificates, a certain sum, and subsequently, in February, 1888, defendant paid out a certain other sum as and for the taxes on said lands for the year 1887; and later, to-wit, in June, 1888, paid the taxes on the land for 1888; and that all of said sums were paid prior to the commencement of this action. Defendant further charges "that plaintiff has made no tender to the defendant of the several or diverse sums of money so paid by him for taxes as before set forth, nor has the plaintiff paid the same, as provided in § 75, c. 28, Pol. Code of this state, and prayed that the action be dismissed. Plaintiff served reply to the answer, alleging in detail certain irregularities in the tax proceedings in Barnes county for the years 1886, 1887 and 1888, viz, irregularities in the assessment, equalization, and levy of all of said taxes; also certain irregularities in the sale and return made by the treasurer in 1887, and upon which said certificates and tax deed were made and delivered, as above stated. Plaintiff claimed that by reason of the alleged irregularities set out in the reply said tax deed and all of said taxes and tax proceedings are absolutely void. The trial court found all of the alleged irregularities to be true in fact, and certain of them will be referred to hereafter. The case was tried by the court, and there were voluminous findings of fact, but it will be unnecessary to set out any of the findings except the following: "On the trial of the case the defendant abandoned the claim that by the tax sale he had become the owner in fee of the land, or had any further interest therein except a lien for the taxes which he had paid and interest." "That the tax deed set forth in the answer is a true copy of the deed made to defendant by the treasurer of Barnes county." That in the assessment roll and tax list of Barnes county for the years 1886, 1887 and 1888,...