Roberts v. First Nat. Bank of Fargo
| Decision Date | 09 August 1899 |
| Docket Number | 6731 |
| Citation | 79 N.W. 1049,8 N.D. 504 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by Matilda Roberts against the First National Bank of Fargo and W. D. Hodgson to determine adverse claims to lot 20 block "G," of Charles Roberts' Addition to the City of Fargo. The defendants claim under certain tax sales and tax deeds. The First National Bank of Fargo claimed to own the south half of lot 20 under a sale based on the taxes for the year 1888, and the respondent, Hodgson, claimed the north half of said lot 20 under tax deeds based on sales for the years 1890, 1892 and 1893. The deed to the bank was recorded more than three years before the commencement of this action. The District Court held, that under said tax deeds the defendant bank was the owner of the south half of said lot 20, and that the defendant Hodgson was the owner of the north half thereof, and that the title of each therein should be quieted and confirmed. Plaintiff appealed.
Modified.
Decree entered cancelling and annulling the tax deeds and confirming the title of appellant to the south half of said lot 20 is against the respondent bank, save and as to the claim of said respondent under the certificate of sale for delinquent pavement tax set forth, and confirming the title of appellant to the north half of said lot absolutely as against the claims of respondent Hodgson under the tax deeds. Appellant recovered costs against respondent Hodgson. Decree modified.
J. E Robinson, for appellant.
The tax sales and all the assessments of the north half and the south half of lot 20, block "G," are void because said lot has no north half and no south half. It is not in the form of a parallelogram. It is bound on the north by a straight line and on the south by an irregular curved line following the bed of a ravine, and it has never been subdivided. The sale under which the bank claims title was void for the reason that it was made for an excessive amount. In 1888 the total interest and penalty was $ 17.68 as charged against lot 20. The sale was for $ 19.06 as shown by the recitals in the deeds. A tax sale is void when made for a sum in excess of the legal taxes and charges. Baker v Supervisors, 39 Wis. 447; Milledge v. Coleman, 47 Wis. 184; Kimball v. Ballard, 19 Wis. 634; Barden v. Supervisors, 33 Wis. 447; Harper v. Rowe, 53 Cal. 233; Wills v. Austin, 53 Cal. 152; Treadwell v. Patterson, 51 Cal. 637; Case v. Dean, 16 Mich. 12; Riverside v. Howell, 113 Ill. 259; Kemper v. McClelland, 19 Ohio 308; Gage v. Pumpelly, 115 U.S. 454. The lot was assessed as one entire tract and valued at one lump sum, and there was no authority to subdivide the lot and to sell it in fractional parts. O'Neil v. Tyler, 3 N.D. 47, 53 N.W. 434. A tax deed cannot be made conclusive evidence of any essential requisite of the exercise of the taxing power, such as the assessment, levy, and sale. McCready v. Sexton, 29 Ia. 356, 385; Cooley on Taxation (2d Ed.) 555; Cooley's Cons. Lim. 447 and 449; Groesbeck v. Seeley, 13 Mich. 329, 342; Baker v. Kelley, 11 Minn. 480; Blackwell on Tax Titles, Chap. 39, Secs. 895 and 944; Dingy v. Paxton, 60 Miss. 1038; Baldwin v. Merriam, 16 Neb. 199; Conway v. Cable, 37 Ill. 82; Waln v. Shearman, 8 Serg. & R. 357; Kipp v. Johnson, 31 Minn. 360; Farar v. Clark, 85 Ind. 449; Case v. Dean, 16 Mich. 12; Quinlan v. Rogers, 12 Mich. 168. The provision of the Comp. Laws (Sec. 1640) that no action shall be commenced by the former owner of lands to recover the possession of land which has been sold and conveyed for the non-payment of taxes unless the action is commenced within three years after the recording of the deed, would not apply as against tax deeds void upon their face. Section 1640, Compiled Laws, was repealed before this action was commenced, and after the expiration of three years from the record of one tax deed. This section (1640) of the Comp. Laws, merely took away or suspended certain remedies or forms of action but left the property rights of the parties unaffected. Kipp v. Johnson, 31 Minn. 360. This is a statutory proceeding for the determination of adverse claims. Walton v. Perkins, 28 Minn. 413. All that the complaint need allege is that defendant claims some estate or interest in or lien upon the land without showing that the claim is invalid or that the defendant does the plaintiff any wrong in making it. Steele v. Fish, 2 Minn. 129; Hamilton v. Batlin, 8 Minn. 359. The plaintiff having proved his possession or title, the burden shifts to defendant to prove his adverse claim. Wilder v. St. Paul, 12 Minn. 116. The object of the action is to force one claiming an adverse interest or lien to establish or abandon his claim. Meighen v. Strong, 6 Minn. 111. With respect to the claim of the defendant, the position of the parties is the reverse of that occupied by the parties in an ordinary action. The defendant becomes practically the plaintiff and takes the affirmative in pleading and proof. The action under the statute is to compel the defendant to tender issues unless he chooses to abandon them. Meighen v. Strong, 6 Minn. 111; Eastman v. Linn, 20 Minn. 387; Bausmen v. Faue, 45 Minn. 412. The primary question in the case is not on the right of the plaintiff to maintain her suit, but on the right of the defendants to maintain it. The Statute of Limitations plead against appellant was repealed by the Revised Code before the respondent Hodgson obtained his tax deeds, while said statute pertains only to the remedy and rules of evidence in which no one has a vested right. Cooley's Const. Lim. (6th Ed.) 450.
Newman, Spalding & Stambaugh, for respondent.
The defendant bank claims the south half of lot 20 under a tax deed issued on a sale for delinquent taxes made in 1889 which deed was issued to O. P. Smith and was recorded February 8, 1892. Smith quit-claimed to the bank and this deed was recorded May 15, 1895. Plaintiff's title can not be quieted unless this deed is set aside. Her action, therefore, is one to avoid a tax deed. Mead v. Nelson, 52 Wis. 402. The tax sale was made under Sec. 1622, Comp. Laws. It is in the form provided by statute, executed under Sec. 7, Chap. 100, Laws 1891. This action is barred under Sec. 1640, Comp. Laws, under which the sale to Smith was made and the title under the tax deed became absolute three years after the record of such deed. Pillow v. Roberts, 13 How. U. S. 472; Leffingwell v. Warren, 2 Black U. S. 599; Colter v. Stafford, 48 F. 266; Bardon v. Land Improvement Co., 157 U.S. 327; Wickoff v. Miller, 19 So. Rep. 478; Woolfork v. Buckner (Ark.) 29 S.W. 372; Martin v. Garrett, (Kas.) 30 P. 168; Doudna v. Harlan, (Kas.) 25 P. 883; Maxson v. Huston, 22 Kan. 448; Smith v. Cleveland, 17 Wis. 573; Lord v. Milwaukee, 15 Fed. Cases, 888, No. 8507; Knox v. Cleveland, 13 Wis. 274; Dalrymple v. Milwaukee Ry. Co., 10 N.W. 141; Mansean v. Edwards, 10 N.W. 554; Hiles v. La Flesch, 18 N.W. 435; Hotson v. Wetherby (Wis.) 60 N.W. 423; Dupen v. Wetherby (Wis.) 48 N.W. 378; Oconto Co. v. Jerrard (Wis.) 50 N.W. 591; Sherry v. Gillmore, (Wis.) 17 N.W. 252; Hazeltine v. Simpson (Wis.) 17 N.W. 332; Sprecher v. Wakeley, 11 Wis. 451; Edwards v. Sims (Kas.) 19 P. 710; Bronson v. St. Croix Lumber Co. , 46 N.W. 570; Thompson v. Brackinridge, 14 Serg. & R. 346; Frick v. Sterrett, 4 Watts & Serg. 269; Burd's Ex'rs, 22 Pa. 219; Fager v. Campbell, 5 Watts 288; Stewart v. Shoenfelt, 13 Serg. & R. 360; Strauch v. Shoemaker, 1 Watts & Serg. 166; Meldahl v. Dobbin, 77 N.W. (N. D.) 280; Jeffrey v. Brockaw, 35 Ia. 505; Thomas v. Stickle, 32 Ia. 71; Pierce v. Weare, 41 Ia. 378; Joslyn v. Rockwell, 128 N.Y. 334; People v. Turner, 117 N.Y. 227; Ensign v. Barse, 107 N.Y. 329; Ware v. Little, 35 Ia. 234; Sibley v. Bullis, 40 Ia. 429; Martin v. Cole, 38 Ia. 141; McCready v. Sexton, 29 Ia. 356; Clark v. Thompson, 37 Ia. 536. Section 1640, Comp. Laws, is not repealed by the statute of 1890. The retroactive provisions contained in that statute are not indicated in its title, which only refers to the future assessment, levy, and collection of taxes. The title gives no indication of any change of the statute of limitations affecting prior actions. As to those it is unconstitutional. Divet v. Richland County, 8 N.D. 65, 76 N.W. 993. The provisions of Chapter 132, Laws 1890, are entirely prospective in their operation. Wells County v. McHenry, et al., 7 N.D. 246, 74 N.W. 241. This section of the statute was repealed by the Revised Codes which went into effect January 1, 1896. The title under the tax deed became absolute prior to the repeal of the statute and could not be disturbed by the repeal. The statute affects the title to the land and not simply the remedy. Way v. Hooton, 26 A. 784; Bird v. Sellers, 21 S.W. 91; Cole v. Coon, 12 So. Rep. 849; Smith v. Cleveland, 17 Wis. 573; Knox v. Cleveland, 13 Wis. 274; Sprecker v. Wakeley, 11 Wis. 451. Statutes of limitations with respect to real estate are statutes of repose and favored by the courts. Lewis v. Marshall, 5 Pet. 478; Leffingwell v. Warren, 2 Black 606; Cheatham v. Young, 18 S.E. 93; Manufacturing Co. v. Brooks, 11 S.E. 460. The respondent bank offered evidence for the purpose of showing the amount of tax charged against the land and paid by Smith. This was no waiver. Bardon v. Implement Co., 157 U.S. 327; Edwards v. Sims, 19 P. 710. The object of this proof was to afford a basis for judgment under section 1643, Comp. Laws. The possession of unoccupied land follows the tax deed. Gunnison v. Hoehne, 18 Wis. 283; Dean v. Early, 15 Wis. 109; Whitney v. Marshall, 17 Wis. 180; Knox v. Cleveland, 13 Wis. 274; Lawrence v. Kenney, 32 Wis. 281; Bardon v. Implement Co., 157 U.S. 327. Were this an action to recover...
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