State Fin. Co. v. Mulberger

• Decision Date: 27 June 1907
• Citation: 112 N.W. 986,16 N.D. 214
• Parties: STATE FINANCE CO. v. MULBERGER et al.
• Court: North Dakota Supreme Court

16 N.D. 214

112 N.W. 986

STATE FINANCE CO.

v.MULBERGER et al.

Supreme Court of North Dakota.

June 27, 1907.

Syllabus by the Court.

A certificate of sale of land for the taxes of 1895, which is void for irregularity in the description of the land is not any evidence of assessment and levy of a tax.

A description of the land assessed is essential to a valid tax, and unless there is such a description there is no assessment, and consequently no tax.

Notices of tax sales and notices of the time when redemption will expire must describe the land involved in the tax, and such notices are not effectual without such description.

A tax deed issued in 1898 in the name of a county, and not in the name of the state, is void.

Service of notice of the time when the period for redemption from a tax sale will expire on the holder of a void tax deed as owner is not effectual for any purpose.

Various descriptions of land in assessments, notices of sale, and notices of expiration of redemption period considered, and their sufficiency passed upon.

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

Action by the State Finance Company against H. Mulberger, William H. Beck, and another. From a judgment for plaintiff, William H. Beck and another appeal. Modified and affirmed.Marion Conklin and F. G. Kneeland, for appellants. John Knauf and Wicks, Paige & Lamb, for respondent.

MORGAN, C. J.

This is an action to quiet title, and involves the E. 1/2 of the N. E. 1/4 and the S. W. 1/4 of the N. E. 1/4 of section 7, township 139, range 63. The complaint is in the statutory form, and alleges that plaintiff is the owner in fee of the land. The defendants Beck and Myers answered separately, and denied the plaintiff's ownership of the land, and the defendant Beck claimed to be the absolute owner thereof by virtue of tax deeds and tax certificates subject to the defendant Myer's interest in the same. The plaintiff claims title to the land under a deed from the former owner, L. F. Cale, dated in 1903. The defendant Beck contends that Cale's title had been divested by virtue of tax proceedings which had vested the absolute title to the land in him. The tax titles under which Beck claims are the following: (1) A tax deed dated December 17, 1898, under the sale of the land in 1895 for the tax of 1894. (2) A tax deed dated January 11, 1901, under a sale of the land in 1897 for the tax of 1895. (3) A tax deed dated January 11, 1901, under a sale in 1897 for the tax of 1896. (4) A tax certificate under a sale of the land on November 21, 1898, on a judgment rendered under chapter 67, p. 76, Laws 1897, known as the “Wood Law.”

There are many objections brought forward to the defendant's title, identically the same as in the cases just decided between these same parties. State Finance Co. v. Myers, 112 N. W. 76;State Finance Co. v. Trimble, 112 N. W. 984. These objections, so far as passed upon in those cases, will not here be noticed. The defendants have also raised the same objections to the plaintiff's title as they did in those cases. Those objections will not be further noticed.

It is conceded that the tax deed of 1898 under the sale of 1895 for the taxes of 1894 is void, for the reason that said deed runs in the name of Stutsman county, and not in the name of the state of North Dakota. This question was passed upon in a recent decision of this court in State Finance Co. v. Beck, reported in 109 N. W. 357, and in Beggs v. Paine, 109 N. W. 322.

Appellant Beck introduced in evidence the tax certificate on which this deed was based, and claims that he is entitled to judgment against the plaintiff for the taxes paid by him. This follows, if the sale was a valid one and based on a valid assessment and levy. The plaintiff attacks the sale as not based on a legal notice of sale, alleging that the land was erroneously described. The land was described in the notice as the “E. 1/2 of S. W. 1/4 of N. E. 1/4.” This was a description of 20 acres only, while the land sold was 120 acres, as evidenced by the certificate. The notice was fatally defective, and not in compliance with the provisions of the revenue law of 1890. The trial court did not err in refusing to render judgment for the taxes paid at the sale of 1895. There was no proof of a valid tax.

The deed under the 1895 tax, which was issued in 1901, is attacked on various grounds, among them that there was no legal notice of the time when the redemption period expired. This deed is void for that reason. The notice of expiration of the redemption period was not directed to nor served upon the owner of the land. It was served upon H. Mulberger, who claimed to own the land. His title, however, was based on a void tax deed. He was not the actual owner. He was attempting to hold said land under a void tax deed. Service of redemption notice upon the holder of such a deed is not a compliance with the statue. Nind v. Myers, 109 N. W. 335.

The plaintiff also attacks the validity of the defendant Beck's title...