Remmich v. Wagner

• Decision Date: 03 February 1950
• Docket Number: No. 7164,7164
• Citation: 41 N.W.2d 170,77 N.D. 120
• Parties: REMMICH v. WAGNER et al.
• Court: North Dakota Supreme Court

Page 170

41 N.W.2d 170

77 N.D. 120

REMMICH v. WAGNER et al.

No. 7164.

Supreme Court of North Dakota.

Feb. 3, 1950.

Syllabus by the Court.

1. That the proof of posting the tax lists is not in conformance with the proof required by the initiated act of 1932, 1933 S.L. 500, does not for reasons stated in the opinion vitiate the tax sale or invalidate the deed issued thereon.

2. The provisions of the statute leading up to a sale by the county of tax acquired land must be substantially complied with.

3. The Supreme Court is not required to render final judgment in all cases wherein a trial do novo is demanded. Where it deems such course necessary to the accomplishment of justice, it will remand the case for a retrial in the District Court. King v. Tallmadge, 45 N.D. 530, 178 N.W. 280.

4. For reasons stated in the opinion this case is remanded to the District Court for a new trial on the issue stated herein.

A. O. Ginnow, Jamestown, for appellant.

Chas. Coventry, Linton, and I. A. Mackoff, Ashley, for defendants and respondents.

GRIMSON, Judge.

Plaintiff brings this action to quiet title to the West One-half (W 1/2) of the Southeast Quarter (SE 1/4) of Section Twenty-two (22), Township One Hundred Thirty-one (131) North of Range Seventy-one (71) West, in McIntosh County. He claims title through tax proceedings. The complaint is in the statutory form. The defendants answer claiming that the proceedings leading up to the tax sale on which plaintiff's title is based were not carried on in the manner provided by statute and further, that the sale of the land by the county to the plaintiff was not conducted according to law, and defendants ask that title be quieted in them. To the answers of the defendants, plaintiff replied with a general denial. The case was tried to the Court and judgment ordered in favor of the defendants. From that judgment this appeal is taken.

The record shows Katherina Wagner became the owner of the land involved by warranty deed, dated November 27, 1932. That she died on or about October 1, 1938. That the defendants, Christ Wagner, Daniel Wagner, Phillip Wagner, Peter Wagner, Christina Wagner and Reinhold Wagner are her heirs. That they are the owners of the property in the respective shares found by the district court unless their title has been divested by the tax proceedings or the sale of the land by the county to the plaintiff.

The evidence shows that the land in question was sold on the 12th day of December 1933 for the 1932 taxes. The tax sale certificate was issued December 12, 1933. Notice of the expiration of the period of redemption was duly served. No redemption was made. Tax deed to McIntosh County was executed October 1, 1940.

The law governing that tax sale was the initiated measure of November 8, 1932, 1933 S.L. 500. That law provides that the county auditor shall at least twenty days before the second Tuesday of December of each year: 'Prepare a list of all delinquent real estate taxes and shall post or cause to be posted one copy thereof in a conspicuous place in his office one copy thereof in each of at least four conspicuous public places, such as banks, public halls or postoffices, in different parts of his County, and shall retain a copy of such lists which shall at all times be on file and open to public inspection in his office. All such lists shall be signed and certified to by the County Auditor. * * *'

Section 5 of the initiated law, S.L.1933, 502, provides: 'The lists herein referred to may be posted by the County Auditor or his deputy or any employee of his office or by the Sheriff or any Deputy Sheriff of the County, and proof of such posting shall be made and preserved by affidavit showing the fact, time and the places of posting such lists made by the party or parties posting the same and filed in the office of the County Auditor before the date of the tax sale referred to, and proof of the publication of the notice of tax sale shall be made by affidavit filed with the County Auditor before the date of sale to which it relates.'

The objections to the proceedings leading up to the sale urged by the defendants are that there is no proof that the auditor prepared a list of the delinquent real estate taxes as required by this initiated law or that he posted a copy thereof in a conspicuous place in his office and in at least four conspicuous public places in the county, or that he retained a copy of such list on file in his office open to public inspection.

There is no direct proof in the evidence of the preparing of these lists for the 1932 tax sale and the only proof of the posting of these lists is by way of five unsworn statements made by others than the auditor himself certifying that the county auditor of McIntosh County did more than twenty days before the first Tuesday in December 1933 post in the Schumacher Store at Zeeland, North Dakota, First State Bank of Venturia, North Dakota, Hofer Hardware Building at Wishek, North Dakota, A. F. Ziegenhagel Hardware Building at Lehr, North Dakota, and in the Bank and Hardware Building at Danzig, North Dakota a copy of the delinquent tax sale list of McIntosh County for the year 1933. These statements were produced from the auditor's files.

Section 2 of the Initiated act provides: 'The County Auditor shall give notice of the delinquent real estate tax sale in the official newspaper of the County. Such delinquent tax sale notice shall be published in such paper once a week for two successive weeks, the first publication of such notice to be made at least fourteen days prior to the date of such sale, and such notice as published shall be signed by the County Auditor. It shall contain the information that all lands upon which taxes for the preceding year remain unpaid will be sold, and shall state the time and place of such sale, which sale shall be held on the second Tuesday in December of each year. Such notice shall not contain the name of the owner of any lot or tract nor the description thereof, but it shall state that a list of all lands subject to such sale is on file and may be examined at the office of the County Auditor of the County and that a copy of such list with names of the owners and descriptions of the lands or tracts involved and the total amount of taxes and penalty due on each such tract (in which shall be included the sum of 15cents as the cost and expense of advertising each such lot or tract) has been posted in the office of the County Auditor and in four or more public places in the County and shall give the name and location of each such place. The land and lots shall be offered for sale by the County Auditor or his deputy in the order in which they appear in such list.'

An affidavit of the publication of such notice for the sale in question was produced in evidence. That notice and affidavit in all respects conform with the law and no attack is made upon them.

It seems, therefore, that the only irregularity which appears in the evidence in connection with the tax sale in question arises from the failure of the proof of the preparing and posting of the tax sale lists to conform with the proof prescribed by the statute.

Paragraph 15, Sec. 31-1103, NDRC 1943, establishes the presumption, satisfactory, if uncontradicted, 'that official duty has been performed regularly.' It was the official duty of the auditor to prepare and post the lists of delinquent real estate taxes. The presumption is that he did so. There is no evidence to contradict this presumption. The unsworn statements and the affidavit of publication support that presumption. There is no pretense or proof that the lists were not actually prepared and posted as prescribed by statute. It is the fact and not the proof of making and posting the lists that controls. Cruser and Baker v. Williams, 13 N.D. 284, 287, 100 N.W. 721; Emmons County v. Thompson, 9 N.D. 598, 605, 84 N.W. 385.

Moreover, a mere irregularity in the proof of the making and posting of the tax lists would not be sufficient to set aside the tax sale unless that became an essential part of proving that the notice of the tax sale was not given. In other words, before the deed based on that tax sale could be set aside under the evidence of this case the proof must fail to show that the notice of the sale was given as required by law. It is the giving of the notice of tax sale that is jurisdictional to a valid tax sale. It is only for jurisdictional defects that this tax deed could be set aside at this time.

Sec. 57-2429, NDRC 1943, provides that:

'Tax sale certificates, either original or subsequent, in all cases shall be prima facie evidence that all the requirements of law with respect to the sale have been complied with, and that the grantee therein is entitled to a deed therefor after the time of redemption has expired. No sale shall be set aside nor held invalid, unless the party objecting * * * shall prove that:

'1. The property upon which the tax was levied was not subject to taxation;

'2. The taxes were paid prior to such sale;

'3. Notice of such sale as required by law was not given; or

'4. The piece or parcel of land was not offered at said sale to the bidder who would accept the lowest rate of interest on the amount for which the piece or parcel was to be sold.

'In any such case, but in no other, the court may set aside the sale or reduce the amount of taxes upon the land sold, rendering judgment accordingly.'

The effect of this section is that any irregularity excepting the four mentioned that is not attacked, before the tax sale, is cured and as to those four the prima facie evidence of the certificate must have been overcome before the sale can be set aside. Beggs v. Paine, 15 N.D. 436, 109 N.W. 322.

The validity of this tax deed, therefore, depends on whether or not the irregularity in the proof of making the posting of the tax lists amounts to a sufficient showing to overcome the prima facie evidence of the certificate...