State Fin. Co. v. Beck

• Decision Date: 16 October 1906
• Citation: 15 N.D. 374,109 N.W. 357
• Parties: STATE FINANCE CO. v. BECK et al.
• Court: North Dakota Supreme Court

15 N.D. 374

109 N.W. 357

STATE FINANCE CO.

v.BECK et al.

Supreme Court of North Dakota.

May 15, 1906.

Rehearing Denied Oct. 16, 1906.

Syllabus by the Court.

The occasional cutting and removal of hay from unoccupied lands, under a permit from one claiming title adverse to the plaintiff's grantor, is not sufficient to constitute adverse possession so as to avoid plaintiff's deed for maintenance.

Where two tracts of land are assessed and taxed as a single tract the entire tax proceeding is a nullity.

Where the same irregularity appears on the face of all the proceedings under the “Woods Law” (chapter 67, p. 76, Laws 1897), the judgment in that proceeding is void.

Where there is an utter absence of those things which are inherently essential to a valid tax, equity cannot require payment as a condition to relief from the proceedings.

A certificate issued in evidence of a sale under the “Woods Law” is, if valid on its face, prima facie evidence of a valid judgment and sale. Young, J., dissenting.

The certificate becomes conclusive evidence of a valid sale if not attacked in an action commenced within three years after the sale, unless the judgment was paid before sale or a redemption effected after sale. Young, J., dissenting.

Even if the judgment was void the sale becomes valid if not attacked within three years, unless a jurisdictional defect in the antecedent proceedings can be shown. Nind v. Myers, 109 N. W. 335, followed. Young, J., dissenting.

The fact that instead of furnishing the sheriff with a certified copy of the judgment upon which to make the sale, the original judgment was used for that purpose, is not a jurisdictional defect in the proceedings. Young, J., dissenting.

Service of the notice of expiration of time to redeem from such a sale upon the grantees named in certain recorded tax deeds which were void on their face is not a service upon the owner required by section 1344, Rev. Codes 1899.

A tax deed void on its face is not evidence of a tax sale or of the existence of a tax.

Where the defect in the deed was properly pointed out by an objection at the trial, but the party offering it neglected to offer other evidence of his alleged right as a tax-sale purchaser he cannot have a new trial to supply the absence of proof. Beggs v. Paine, 109 N. W. 322, distinguished.

In case of such failure of proof the alleged taxtitle purchaser must be held to have no claim either on the land or for reimbursement from the county as on a void sale.

In an action to determine adverse claims the plaintiff will not be relieved from an alleged invalid tax sale unless he pays the face amount of all just taxes with interest from the day of sale. Previous cases on this point overruled.

A notice of the expiration of the time to redeem from a tax sale under the revenue law of 1897 is fatally defective if it incorrectly states the time when the redemption right will expire.

All objections to a tax sale under the revenue law of 1897 are barred unless the defect is one of those mentioned in section 1263, Rev. Codes 1899, or some other jurisdictional defect. Beggs v. Paine, 109 N. W. 322, followed.

Appeal from District Court, Stutsman County; S. L. Glaspell, Judge.

Action by the State Finance Company against William H. Beck and Valeria R. Myers. Judgment for plaintiff, and defendants appeal. Reversed and remanded.Marion Conklin and James B. Kerr, for appellants. John Knauf, Seth Newman, and Wicks, Paige & Lamb, for respondent.

ENGERUD, J.

This case is here for trial de novo of all the issues pursuant to an appeal by defendants. Plaintiff, claiming to be the owner in fee, brought this action in statutory form to determine adverse claims. Defendants, Valeria R. Myers and William H. Beck, answered separately, each claiming title under certain tax deeds and liens under tax-sale certificates. Plaintiff claims title through a deed executed and delivered to it by one Kindred shortly before this action was commenced; and it is admitted that Kindred was, when he executed it, the owner of the land unless his title had been divested by certain tax sales hereinafter mentioned. Counsel for defendants contend that the deed under which the plaintiff claims title is void under Galbraith v. Payne, 12 N. D. 164, 96 N. W. 258. It is asserted that the plaintiff's grantor had not taken rents for one year prior to the execution of the deed, and that the land was in the adverse possession of the defendant Beck. The facts do not sustain this contention. The land was wild, uncultivated prairie, without improvement of any kind whatever. Plaintiff's grantor was a nonresident. In 1901, 1902, and 1903 his local agent at Jamestown sold to one Jennings the privilege of cutting the hay, and the latter, under this privilege, went upon the land and cut the hay in the seasons of 1901, 1902, and 1903, and removed it to his own farm. The hay was not stacked upon the premises, and he made no improvements of any kind. It took about 10 days to cut and remove the hay. Plaintiff's agent went over the land before completing the purchase. He saw no evidence of possession, and testified that he did not know that the hay had been cut by Jennings until he heard the latter's testimony to that fact. To constitute a disseisin of the owner of uncultivated or wild land by entry and occupation, the occupation must be of that nature and notoriety that the owner might be presumed to know that there was a possession of the land. A mere occasional entry to cut grass is not of that nature, and so it has been held. Washburn v. Cutter, 17 Minn. 361 (Gil. 335); Bazille v. Murray, 40 Minn. 48, 51, 41 N. W. 238;Lambert v. Stees, 47 Minn. 141, 49 N. W. 662. See, also, Bump v. Butler County (C. C.) 93 Fed. 290, 300; Buswell on Limitations & Adverse Possession, § 253; 1 Enc. of Evidence, 654, and cases cited. There was in this case but an occasional entry and for a temporary purpose. It was not such an occupation as is required to constitute adverse possession. The deed was not, therefore, within the prohibition of the statute against maintenance.

The action involves the title to three distinct tracts of land: The N. E. 1/4 of the N. W. 1/4 of section 13, township 139, range 63; the W. 1/2 of the S. E. 1/4 of the same section; and the W. 1/2 of the E. 1/2 of section 25 in the same township. The first two tracts above described were assessed and taxed as a single tract although they were 80 rods apart. There was consequently no assessment of either tract, and hence there is nothing which can be held to be a tax either in law or equity. The invalidity of the proceedings as to these two tracts was apparent on the face of the certificates and deeds. The irregularity is fatal not only to the tax sales, but also to the tax itself. Roberts v. Bank, 8 N. D. 504, 79 N. W. 1049. The judgment and sale under the “Woods Law” (chapter 67, p. 76, Laws 1897), does not avail anything because the same irregularity exists in that proceeding. The citation, judgment, and certificate all included the two distinct tracts under a single description. That law required each distinct tract to be separately described. Section 1331, Rev. Codes 1899. Although, under section 1339 the list of delinquent taxes filed with the clerk of court is prima facie evidence of the validty of the taxes listed, yet it is obvious it could not have that effect where the list disclosed the incurable illegality of the charge. A court of equity cannot impose as a condition of relief in this form of action the payment of the amount justly due when, as in this case, the inherent essentials to the existence of an assessment and tax are lacking. With respect to the W. 1/2 of the E. 1/2 of section 25 defendant Beck claims title by virtue of a sale on November 21, 1898, pursuant to the “Woods Law.” The certificate is in the same form as that considered in Nind v. Myers (just decided) 109 N. W. 335; and is valid on its face for the reasons there stated. Following the decision in that case we hold that, by reason of the limitation provisions of section 15 of that law (section 1345, Rev. Codes 1899), the validity of the sale cannot now be questioned, and the certificate has become conclusive evidence of a valid sale. In this case, however, the land was sufficiently described in the citation published by the clerk of court, and a judgment in proper form was duly rendered.

The fact that no certified copy of the judgment was handed to the sheriff, but instead thereof he used the original judgment, we do not consider of any importance. The same irregularity existed in the sale involved in Nind v. Myers. It is plain that the Legislature could have authorized the sheriff to make the sale in the manner he did without a certified copy of the judgment. The requirement that a certified copy should be provided for the sheriff was for his convenience and that of the other officers. There was nothing in that requirement designed for the protection of the landowners; and its omission could not prejudice them. Be that as it may, it was only a legislative requirement, which the Legislature could dispense with, and hence all objections because of that irregularity is barred by the limitation provisions of section 1345, Rev. Codes 1899. Nind v. Myers. We hold, however, that the plaintiff's redemption right has not been terminated by proper notice. The statute requires, among other things, that the notice must be served on the owner by mail if the owner is a nonresident. Section 1344, Rev. Codes 1899. The notice was not mailed to Kindred, the then owner. It was mailed to the persons whose names appeared of record as grantees in certain prior tax deeds. Each of these tax deeds were void on their face because they were not in statutory form; and were also void for other reasons. Without deciding whether a notice to the apparent record owner would be sufficient under this statute, we are agreed that the grantee named in a recorded tax deed void on its...