Roberts v. First Nat. Bank of Fargo

• Decision Date: 09 August 1899
• Parties: ROBERTS v. FIRST NAT. BANK OF FARGO et al.
• Court: North Dakota Supreme Court

8 N.D. 504

79 N.W. 1049

ROBERTS

v.FIRST NAT. BANK OF FARGO et al.¹

Supreme Court of North Dakota.

Aug. 9, 1899.

Syllabus by the Court.

1. A purchase at a tax sale is a contract. It is made upon the statutory assurances then given to the purchaser, and no subsequent statute can sweep away these assurances without impairing the obligations of the contract.

2. It is competent for the legislature to make a tax deed or tax-sale certificate conclusive evidence of the due performance and regularity of all tax proceedings that are exclusively within legislative control, but not of such matters as are jurisdictional.

3. Where there are jurisdictional defects in a tax proceeding, the recording of a tax deed issued pursuant to a sale for such tax will not set the statute of limitation running in favor of the party claiming under such deed, and it is immaterial whether such facts appear on the face of the deed or aliunde.

4. Where an entire lot in a city was assessed in solido for a lump sum, it was not competent for the treasurer to sell any portion of such lot for the tax on such portion. There was never any assessment of such portion, and such lack of assessment was a jurisdictional defect, and the legislature could not make the recitals in such deed conclusive evidence that there had been an assessment.

5. But it was competent for the legislature to make the recitals in the deed conclusive as to the description of the land upon which the tax was delinquent, and as to the land sold, and, where the descriptions were unambiguous, it was not proper to consider evidence on these points dehors the deed.

6. It is competent for an assessor, in assessing real estate, to describe the same as the title appears of record. He is not required to search for unrecorded instruments, or to pass upon the validity of those on record, where they are not void on their face; and a city engineer, in making an assessment for paving purposes, may follow the same course, particularly where the assessment is in proportion to frontage, and not to valuation.

7. A statute declared that no member of the city council should be interested in any contract entered into by the city. Held, that a violation of the provision would not defeat a tax levied for the purpose of making payments under the contract.

8. Following Rolph v. City of Fargo, 76 N. W. 242, 7 N. D. 640,held, that a statute authorizing the assessment of a paving tax on the front-foot plan is not unconstitutional.

9. Where a sale of land for taxes is set aside as void, and the purchaser has paid subsequent taxes on the land, he is not entitled to a judgment against the fee owner for the amounts thus paid. His remedy to recover for valid taxes paid rests with the legislature, and under section 88, c. 126, Laws 1897, he has his remedy against the county, and the taxes stand as a lien upon the land. Chapter 132, Laws 1890, required real property to be assessed in the name of the owner, if known, and that real estate separately owned should be separately described. These requirements were mandatory and jurisdictional. Where, prior to the preparation of the real-estate tax list a portion of a lot was transferred, and the conveyance duly placed on record, a subsequent assessment of the entire lot at a lump sum against the original owner was unauthorized and void; nor could the auditor in such case divide the valuation, and transfer portions thereof to the respective parts of the lot, under the provisions of section 92 of said chapter 132.

Appeal from district court, Cass county; Charles A. Pollock, Judge.

Action by Matilda Roberts against the First National Bank of Fargo and W. D. Hodgson. Judgment for defendants, and plaintiff appeals. Modified.

Wallin, J., dissenting in part.

J. E. Robinson, for appellant. Newman, Spalding & Stambaugh, for respondents.

BARTHOLOMEW, C. J.

Plaintiff brought this action under section 5904, Rev. Codes, to determine adverse claims to lot 20, block G, of Charles Roberts' addition to Fargo. The action was begun August 25, 1898. Plaintiff avers in her complaint that she is the owner in fee of said lot; that the defendants wrongfully claim some title or interest therein under certain tax sales and tax deeds. The defendants answered separately. The defendant bank alleged ownership in fee in itself of the south half of said lot by virtue of a tax deed issued upon a sale of the same for the taxes of 1888. It also set up a lien by virtue of a purchase from the city for a paving tax levied thereon. The defendant Hodgson claimed title to the north half of said lot by virtue of tax deeds on sales thereof for the taxes of 1889, 1890, 1892, and 1893. There was a reply setting forth matters intended to avoid the tax deeds. The trial court sustained those deeds as to each defendant, and the plaintiff appeals, and demands a retrial of all the issues in this court. As the defenses are entirely separate, we shall first consider that made by the bank.

In 1889 one O. P. Smith purchased the south half of said lot 20 at the regular tax sale for the delinquent taxes of 1888, and received the usual certificate of sale. A tax deed was regularly issued to him upon said certificate on January 15, 1892, and the same was duly recorded on February 8, 1892. On May 13, 1895, O. P. Smith, by quitclaim deed, conveyed the property to the defendant bank. It is urged by the bank that plaintiff cannot now avoid the tax deed issued to Smith. At the time of the sale in 1889, section 1640, Comp. Laws, was in force. It reads: “No action shall be commenced by the former owner or owners of lands, or by any person claiming under him or them, to recover possession of land which has been sold and conveyed by deed for nonpayment of taxes, or to avoid such deed, unless such action shall be commenced within three years after the recording of such deed.” This section was re-enacted verbatim by section 1269, Rev. Codes 1895, but was properly, and in express terms, repealed by section 110, c. 126, Laws 1897, which went into effect March 8th of that year. This action was commenced thereafter. It will be noted that the three-years limitation fixed by the former statute had fully run before that statute was repealed and before this action was brought. Plaintiff concedes that if, at the time of the repeal of that act, the defendant bank had any vested rights of property in the land claimed by it, such rights would not be affected by the repeal. But it is urged by appellant that that statute of limitations never began to run in favor of said deed by reason of certain jurisdictional defects. Section 1639, Comp. Laws, which was in force when the tax sale was made upon which the tax deed rests, reads as follows: “Such deed shall be executed by the county treasurer under his hand, and the execution thereof shall be attested by the county clerk with the county seal, and such deed shall be conclusive evidence of the truth of all the facts therein recited, and prima facie evidence of the regularity of all the proceedings from the valuation of the land by the assessor up to the execution of the deed.” This statute entered into the contract of purchase, and became a part thereof. In Cooley, Tax'n, 545, it is said: “Now, the purchase at a tax sale is clearly a contract. It is made under the law as it then exists, and upon the terms prescribed by the law. No subsequent statute can import new terms into the contract, or add to those before expressed. If it could be changed in one particular, it could be in all; if subject to legislative control at all, it is wholly at the legislative mercy.” See Morgan v. Commissioners, 27 Kan. 89;Forqueran v. Donnally, 7 W. Va. 114;Merrill v. Dearing, 32 Minn. 479, 21 N. W. 721;Robinson v. Howe, 13 Wis. 341. The defendant bank is, therefore, entitled to the full benefit of that provision so far as it is competent legislation, but it is likewise bound by it if it operate to its disadvantage. In the tax deed introduced by said defendant it is recited, in effect, that defendant's grantor, O. P. Smith, purchased the south half of said lot 20 at the tax sale in 1889 for the delinquent taxes thereon for the year 1888. It is not said that he purchased said south half for the delinquent taxes upon the entire lot, but upon the south half of the lot. Such being the recital in the deed, it was competent for the legislature to declare the same conclusive as to the fact. Appellant introduced in evidence the tax list for the year 1888, and that shows that the entire lot 20 in said block G was assessed to the appellant in that year at one lump sum, and it is undisputed that she was at that time the owner of the entire lot. No valuation had ever been placed upon the south half of the lot by the assessor. In other words, it had never been assessed, and there could be no delinquent tax against such tract. No officer had any authority to subdivide lot 20, and say that any portion of the tax thereon, or even all the tax thereon, should be charged to a specific portion of the lot. In O'Neil v. Tyler, 3 N. D. 47, 53 N. W. 434, this court held that, where two lots belonging to one person had been assessed at a lump sum, the treasurer could not sell one lot for a moiety of the tax arising on such lump valuation. The principle of that case is exactly applicable here, and it is well fortified in the books. See authorities cited on page 52. We cannot escape the conclusion, on the undisputed testimony, that the south half of lot 20 was not assessed for taxation in the year 1888. But the tax deed under which the defendant bank claims recites that said tract “had been duly assessed,” and the statute already quoted declares that the “deed shall be conclusive evidence of the truth of all the facts therein recited.” Could the legislature thus foreclose that question as against the appellant? We think not. An assessment is in the broadest sense a jurisdictional requirement. It is the groundwork of all...