Sickler v. Pope, 10219

• Decision Date: 10 November 1982
• Docket Number: No. 10219,10219
• Citation: 326 N.W.2d 86
• Parties: Elizabeth SICKLER, a/k/a Betty Sickler, Plaintiff and Appellee, v. Cyrus J. POPE a/k/a Cyrus John Pope, et al., Defendants, Theodore Kellogg, Ruth Shapiro, Margaret Rauch, and James Robert Pope, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 86

326 N.W.2d 86

Elizabeth SICKLER, a/k/a Betty Sickler, Plaintiff and Appellee, v. Cyrus J. POPE a/k/a Cyrus John Pope, et al., Defendants Theodore Kellogg, Ruth Shapiro, Margaret Rauch, and James Robert Pope, Defendants and Appellants.

Civ. No. 10219.

Supreme Court of North Dakota.

Nov. 10, 1982.

Mackoff, Kellogg, Kirby & Kloster, P.C., Dickinson, for appellants; argued by John L. Sherman, Dickinson.

Reichert, Howe, Hardy, Galloway & Jorgensen, P.C., Dickinson, for appellee; argued by Michael J. Maus, Dickinson.

PAULSON, Justice.

Theodore Kellogg, Ruth Shapiro, Margaret Rauch, and James Robert Pope, et al. appeal from the judgment of the District Court of Dunn County dated March 17, 1982, quieting title to the mineral estate of the Southwest Quarter of Section Fourteen, Township One Hundred Forty-one North, Range Ninety-four West, Dunn County, North Dakota, in favor of Elizabeth Sickler, a/k/a Betty Sickler. We reverse.

Elizabeth Sickler brought an action to quiet title to the mineral estate in 160 acres in Dunn County. Sickler and her predecessors in interest claim undivided title to both the mineral and surface estates through a quitclaim deed issued by Dunn County in 1943 to Jacob Reichert, Jr., as the successor in interest to the former owner upon full performance of a contract for deed to repurchase real estate forfeited to the county under tax deed proceedings, pursuant to the effective provisions of Sec. 19, chapter 286, 1941 Session Laws [now codified as Sec. 57-28-19, North Dakota Century Code]. Defendants and appellants Kellogg, Shapiro, Rauch, and Pope, et al. claim title to the mineral estate through the former record owner, Caroline Pope, by virtue of a special warranty deed executed September 10, 1941, by Caroline Pope, H.A. Mackoff, and Theodore Kellogg, to Jacob Reichert, Jr. This special warranty deed granted to Reichert the right to repurchase the land in question, pursuant to Sec. 19, chapter 286, 1941 S.L. The special warranty deed also contained language reserving the mineral estate in the grantors. James Pope claims a one-half interest in the minerals as the successor in interest to Caroline Pope; Theodore Kellogg claims a one-fourth interest in the minerals; and Margaret Rauch and Ruth Shapiro each claim an undivided one-eighth interest in the minerals as the successors in interest to H.A. Mackoff.

The facts material to the determination of this controversy are as follows:

Cyrus J. Pope received a patent for the land in question from the United States Government on May 5, 1913. On January 16, 1919, Cyrus J. Pope entered into a contract for deed to convey this property to Jacob Reichert, Jr. Subject to the contract for deed, Caroline Pope acquired title to the property from her husband, Cyrus J. Pope, via a warranty deed dated August 5, 1926.

Real estate taxes for the year 1931 were not paid and the property was sold to the county for taxes on December 13, 1932. The contract for deed to Jacob Reichert, Jr., was canceled by a judgment dated November 8, 1937, and a final judgment and decree dated April 1, 1938. In return for legal services rendered in the cancellation of the contract for deed, Caroline Pope, on September 9, 1937, executed a warranty deed conveying an undivided one-half interest in the Southwest Quarter of Section 14, Township One Hundred Forty-one North, Range Ninety-four West, Dunn County, North Dakota, to H.A. Mackoff and Theodore Kellogg. This deed could not be recorded at that time because of the existing tax lien and was not, in fact, recorded until December 23, 1953.

In January 1939 the Dunn County auditor commenced proceedings to sell the property for nonpayment of the 1931 real estate taxes. Notice of expiration of the period of redemption was given January 16, 1939. On October 2, 1939, an auditor's tax deed was executed conveying the Southwest Quarter of Section Fourteen, Township 141 North, Range 94 West to Dunn County.

In 1941, because the period of redemption had expired, Jacob Reichert, Jr., sought to repurchase the property as the successor in interest to the former owner pursuant to Sec. 19, chapter 286, S.L.1941. ¹ On September 10, 1941, by a document in the form of a special warranty deed, Caroline Pope, H.A. Mackoff, and Theodore Kellogg conveyed the property to Jacob Reichert, Jr., reserving unto themselves the mineral estate. On October 10, 1941, the Dunn County board of county commissioners executed a contract for deed in redemption of real estate in favor of Jacob Reichert, Jr., as the successor in interest to the former owner. A quitclaim deed was issued by Dunn County to Jacob Reichert, Jr., on October 20, 1943, conveying the property to him as the successor in interest to the former owner, Caroline Pope.

On November 8, 1943, Jacob Reichert, Jr., and his wife conveyed the property to Valentine Sickler. On March 20, 1958, Valentine Sickler and his wife entered into a contract for deed with Matt Sickler, husband of the plaintiff and appellee, Elizabeth Sickler. Elizabeth Sickler eventually acquired title through a warranty deed dated July 28, 1980. The persons in the chain of title from Jacob Reichert, Jr., down through Elizabeth Sickler have paid all of the real estate taxes assessed against the property.

Elizabeth Sickler commenced this action to quiet title with a summons and complaint dated September 12, 1980. The District Court of Dunn County, in a memorandum decision issued January 28, 1982, concluded that the tax proceedings concerning the sale of the property were invalid because the notice of expiration of period of redemption included taxes for years subsequent to the year 1931 and that, because the proceedings were invalid, the deed from the county to Reichert is also invalid.

Even though the deed from the county to Reichert was found invalid, the district court quieted title to the property in Elizabeth Sickler on the basis of adverse possession under Sec. 47-06-03, N.D.C.C. The court, citing Payne v. A.M. Fruh Company, 98 N.W.2d 27 (N.D.1959), reasoned that the county's tax deed, although invalid, gave the county color of title to the entire estate including the minerals. The severance of the minerals in 1941 by Pope, Mackoff, and Kellogg took place at a time when the entire estate was subject to a tax lien in favor of Dunn County. When Reichert purchased the land in 1941, he received whatever title or color of title the county had. The district court concluded that because the mineral estate could not be severed as to the county in 1941 due to the existing tax lien, Reichert obtained color of title from the county to both the surface and the mineral estate. Because Elizabeth Sickler and her predecessor in interest had been in actual possession of the land for ten years and had paid all taxes assessed and levied thereon, the court quieted title in favor of Elizabeth Sickler.

Although disposing of the case on adverse possession grounds, the district court went on to conclude: that no constructive or resulting trust was created in favor of the former owners by their attempt to reserve the mineral estate; that the claims of appellants Kellogg and the heirs of Mackoff were barred by the doctrine of laches, due to their failure to record the deed by which they acquired their interests, making them strangers to the chain of title at the time Reichert and Valentine Sickler acquired their interests; that the claims of all the defendants were barred by the residuary statute of limitations, Sec. 28-01-05, N.D.C.C., and, finally, that the mineral interest of Elizabeth Sickler was protected by the Marketable Record Title Act (Ch. 47-19.1, N.D.C.C.). Judgment was entered accordingly.

Pope, Kellogg, Shapiro, and Rauch have appealed from the judgment of the district court. The issues presented for review are:

1. Was the tax deed to the county invalid and, if so, what was the nature of the interest, if any, obtained from the county by Jacob Reichert, Jr., and his subsequent grantees?

2. If the tax deed to the county was invalid, was the 1941 special warranty deed from Pope, Mackoff, and Kellogg to Jacob Reichert, Jr., effective to reserve the mineral estate unto the grantors?

3. Have the appellants acquired valid title to the mineral estate by adverse possession, under Sec. 47-06-03, N.D.C.C.?

4. Are the ownership claims of the appellants to the mineral estate barred by the statute of limitations, pursuant to Sec. 28-01-05, N.D.C.C.?

5. Are the ownership claims of the appellants barred by the provisions of the Marketable Record Title Act, Chapter 47-19.1, N.D.C.C.?

6. Are the ownership claims of the appellants barred by the doctrine of laches?

In order to determine the correctness of the district court's decision, we must first discuss the validity of the tax sale proceedings and the effect of the 1941 special warranty deed from Pope, Mackoff, and Kellogg to Jacob Reichert, Jr., and thereby determine the nature of the interest obtained from the county by Jacob Reichert, Jr., and his subsequent grantees.

Caroline Pope did not pay the 1931 real estate taxes and the land was sold to the county on December 13, 1932. Notice of expiration of the period of redemption was issued by the county auditor of Dunn County on January 16, 1939. Taxes for years subsequent to 1931, including the years 1936 and 1937, were listed in the notice and included as part of a total lump sum amount required upon the date of expiration of the period of redemption to redeem the real estate.

Neither the 1936 nor the 1937 taxes on the land under consideration were three years old at the time the notice of expiration of the period of redemption was issued. This court has held in a number of cases interpreting the requirements for the notice of expiration of the period of redemption, pursuant to Sec. 1, chapter 285, 1931 Session Laws, that where a notice of expiration of the period of redemption is issued by the county auditor upon a tax...