Purcell v. Farm Land Co.
| Decision Date | 05 August 1904 |
| Citation | 100 N.W. 700,13 N.D. 327 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Sargent county; Cowan, J.
Action by William E. Purcell and E. A. Divet against the Farm Land Company and the Middlesex Banking Company. Judgment for plaintiffs, and defendants appeal.
Affirmed.
George H. Fay and W. S. Wickersham, for appellants.
The defendants and appellants had paid their taxes and received their receipts from the proper officer of the county; they had done all the law asked of them, and had perfect right to expect the proper record would be made by such officer and that the title to said land would appear clear from such claims on the record.
The law will not aid or permit an individual to take advantage of his own wrong; a county has no greater right under the law than an individual, and could not proceed, after having received the taxes by its proper officers, to take advantage of the wrong and cause an innocent party to suffer therefor. The sale was invalid and void because no notice of it was given as required by the law under which the sale was made. The same was published once each week for two successive weeks in the proper newspaper, and no further publication was made. Section 12 of chapter 67, Laws of 1897, provides that sheriffs shall give notice by posting one copy in the office of the clerk where the judgment shall have been entered, and one in the office of the treasurer, and one at the county seat in some conspicuous place, at least ten days before the sale, and by publishing such notice once in each week for two successive weeks in some newspaper of general circulation the last publication to be ten days before the day of sale. The notice of sale was published two successive weeks in the proper newspaper, but no further notice was given by posting as required by law, in connection with the publication. No notice being given, the sale is void, and the county acquired no title to the land by such sale. No proofs of any kind of the publication of the notice and list were ever furnished to the clerk of the district court before or after entering the judgment. The case of Emmons County v. Thompson et al., 9 N.D. 598, 84 N.W. 385, does not apply, because it does not appear from the agreed facts, that the affidavit and copies of the paper or either of them were on file when the judgment was entered, or were ever filed, and consequently it does not appear that the clerk of the district court had authority to enter the judgment at the time that he did; and such case does not apply because there were taxes due and unpaid against the land in controversy in that case, where in the case at bar there were no taxes due and unpaid and the county had no claim or cause of action against the land in question.
The defendants and appellants now are, and have been continuously since January 23d, 1885, in the quiet and peaceable possession of the land in question, and Sargent county never has had such possession or received the rents and profits from the land. Under the rule laid down in Galbraith v Payne, 12 N.D. 164, 96 N.W. 258, and Schneller v Plankinton, 12 N.D. 561, 98 N.W. 77, a conveyance of title to real estate by a grantor who has not been in possession or taken rents for a space of one year prior thereto, which real estate is held adversely by claim of title, is void, and the conveyance by Sargent county to the plaintiff and respondent is absolutely void.
Purcell Bradley & Divet, for respondents.
When a taxpayer has been cited and had his day in court, he cannot attack the judgment collaterally. 2 Desty on Taxation, 727; Jaggard on Taxation, 434; 2 Dembitz on Land Titles, 1336.
It is the policy of the law that every defect or objection to the enforcement of the tax appearing on the list should be litigated in the proceeding. St. Paul & Duluth Ry. Co., 6 N.W. 454; Chauncey v. Wass, 25 N.W. 457; same on rehearing, 30 N.W. 826; Emmons County v. Lands of First Nat'l Bank of Bismarck, 9 N.D. 583, 84 N.W. 379; Emmons County v. Thompson, 9 N.D. 598, 84 N.W. 385.
The fact of payment of the tax cannot be cited to defeat the judgment. Mayo v. Foley, 40 Cal. 281; State v. Sargent, 18 Mo.App. 228; Wilkins v. Keith et al., 79 N.W. 887.
Jurisdiction of the land is acquired by the fact of publication, not the proof of it. Emmons County v. Thompson, 9 N.D. 598, 84 N.W. 385; Hoyt v. Clark, 66 N.W. 262; Frick et al. v. Reigelman, 43 N.W. 1117; So. Cal. Fruit Exchange v. Stamm, 54 P. 345; Commissioners v. Morrison, 22 Minn. 179.
Section 15, of chapter 67, Laws of 1897, clothes the judgment with all the presumptions which attach to any judgment, and throws upon the party alleging its invalidity to affirmatively establish the want of jurisdiction. This cannot be done by the silence of the record; but where the latter fails to speak, every intendment and presumption are in favor of the jurisdiction. Freeman on Judgments, section 124, and cases cited; Hoyt v. Clark, 66 N.W. 262; Hahn v. Kelly et al., 34 Cal. 391; Holmes et al. v. Campbell, 12 Minn. 221 (Gil. 141); Dean v. Thatcher, 32 N.J.L. 47.
The stipulation that a judgment is "duly" entered concedes a valid and regular judgment, and forecloses all questions of the regularity of the proceedings. The word "duly," in connection with the entry of a judgment, has acquired in law a special significance, and by the use of that word, all jurisdictional statements necessary are implied. 11 Enc. Pl. & Pr. 1137-1138; Hunt v. Dutcher, 13 How. Pr. 538.
Section 7002, Rev. Codes, and Galbraith v. Paine, 12 N.D. 164, 96 N.W. 258; and Schneller v. Plankinton, 12 N.D. 561, 98 N.W. 77, have no application because such section does not apply to sheriffs' and tax deeds. The objection that the printer's affidavit was not filed in time is barred by the statute of limitations. Section 15, chapter 67, Laws of 1897.
What the legislature might have dispensed with in the first instance, and still have a valid proceeding under the constitution, it may, by a curative act in the shape of a statute of limitation, declare no longer of importance. Fisher v. Betts, 12 N.D. 197, 96 N.W. 132; Meldahl v. Dobin, 8 N.D. 115, 77 N.W. 280; Roberts v. First Nat. Bank of Fargo, 8 N.D. 504, 79 N.W. 1049; Sweigle v. Gates, 9 N.D. 538, 84 N.W. 481; Ensign v. Barse, 107 N.Y. 329, 14 N.E. 400, 15 N.E. 401; Ruggles v. County of Fond du Lac, 23 N.W. 417; Milledge v. Coleman, 2 N.W. 77.
Plaintiffs instituted this action to determine adverse claims to the north half of the southwest quarter of section 2, township 129, range 55, in Sargent county, N.D., and allege their absolute ownership of such land, and that the defendants claim an interest or estate therein, or liens thereon, adverse to plaintiffs' title; and they pray that defendants be required to set forth their claims to such land, and that they be adjudged null and void, and that plaintiffs' title be quieted as to such claims, and that defendants be barred from asserting any further claims to said land. The defendants answered, setting forth their title to said land, and claiming ownership thereof by virtue of a sheriff's deed issued to them under a valid foreclosure of a mortgage, and further alleged that all taxes upon said land had been fully paid. The plaintiffs, by a reply, set forth that they are the owners of said land by virtue of the following proceedings, to wit: That in the year 1897 the taxes on said land had become delinquent, and that said county did thereafter, by its regular officers, take all the steps prescribed by chapter 67, p. 76, of the Laws of 1897, to procure a judgment against said land for such delinquent taxes, and judgment for such taxes was on December 29, 1897, duly entered against said land for such taxes, and that said land was thereafter regularly and legally sold under and by virtue of said judgment after due notice of such sale had been given, and a certificate of sale duly issued to the county upon such sale, and that no redemption was ever made from the sale, and that plaintiffs became the owners of said land by virtue of conveyances from Sargent county on January 28, 1902. The cause was submitted to the court at the trial upon stipulated facts as follows: That the defendants have title to the land in question unless the same has been cut off by the judgment and subsequent sale as set forth in plaintiffs' reply; that plaintiffs are the owners of said land unless all proceedings by the county under chapter 67, p. 76, Laws 1897, were void by reason of the fact that all taxes on said land had been fully paid before any proceedings were taken by said county under said chapter; that judgment was duly entered for said taxes, and all the steps prescribed by said chapter for the recovery of judgment were duly taken as prescribed by said chapter; that due notice of the sale of said land was given, as prescribed by law; that notice of the time when the period of redemption from the sale under such judgment would expire was duly given. The trial court rendered judgment as prayed for by the plaintiffs, and adjudged them to be the absolute owners of said land. Defendants appeal to this court from said judgment, and request a review of all the issues, under section 5630, Rev. Codes 1899.
Appellants contend that the judgment should be reversed for the following reasons: (1) No taxes being due or delinquent on said land when the proceedings were commenced and judgment rendered and the sale made under said chapter 67, the court had no jurisdiction of the subject-matter of the action, and all such proceedings were void. (2) That the sale was void for the reason that no notice thereof was given as required by...
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