State Finance Company, a Corp. v. Beck

• Citation: 109 N.W. 357,15 N.D. 374
• Decision Date: 15 May 1906
• Court: United States State Supreme Court of North Dakota

109 N.W. 357

15 N.D. 374

STATE FINANCE COMPANY, A CORPORATION, v. WILLIAM H. BECK, VALERIA R. MEYERS ET AL., DEFENDANTS, AND WILLIAM H. BECK AND VALERIA R. MEYERS, APPELLANTS

Supreme Court of North Dakota

May 15, 1906

Rehearing denied October 16, 1906.

Appeal from District Court, Stutsman county; Glaspell, J.

Action by the State Finance Company against William H. Beck and Valeria R. Myers. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

Reversed and remanded, with directions. Appellant Beck recovered the taxable costs and disbursements of both courts from respondent.

Marion Conklin and James B. Kerr, for appellants.

Paying taxes, leasing and the cutting and removal of hay constitute disseisin. Torey v. Bigelow, 9 N.W. 313; Booth v. Small, 25 Iowa 177; Clement v. Perry, 34 Iowa 564; Finn v. Wisconsin River Land Co., 40 N.W 209; Knox v. Cleveland, 13 Wis. 245.

All defects in the sheriff's certificate are cured by the statute of limitations. Section 15, chapter 67, Laws of 1897; Henningsen v. City of Stillwater, 83 N.W. 983; Whitney v. Marshall, 17 Wis. 174; Oconto Company v Jerrard, 46 Wis. 317.

John Knauf, Seth Newman and Wicks, Paige & Lamb, for respondents.

The possessory act must be of such a nature as to leave some enduring traces, such as cultivation, improvement, substantial enclosure, removal of fuel, fencing of timber for the purposes of husbandry, etc. Section 5193, Rev. Codes 1899. Washburn v. Cutter, 17 Minn. 631; Bazille v. Murray, 40 Minn. 48; Lambert v. Stees, 47 Minn. 141; 1 Am. & Eng. Enc. Law (2d Ed.) 827.

ENGERUD, J. YOUNG, J. (dissenting in part).

OPINION

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 F. 290, 300; Buswell on Limitations & Adverse Possession, section 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 validity 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) 15 N.D. 400, 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 landowner; 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 objection 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 face cannot be held to be the owner within the meaning of this statute. It is unnecessary to notice other alleged defects in the notice. The certificate is valid, but the right of redemption has not been cut off.

The tax deed to Beck, dated December 17, 1898, based on a tax sale in 1895 for the taxes of 1894 is void on its face because it names the county of Stutsman as grantor instead of the State of North Dakota. Beggs v. Paine, 15 N.D. 436, 109 N.W. 322. The deed, therefore, proves nothing but its own execution, and its defects were specifically pointed out by proper objection. The defendant failed to offer any proof of a tax-sale certificate or tax sale, and he must bear the consequences of his own error. The reasons for ordering a new trial in Beggs v. Paine, in a case of absence of proof, do not exist in this case. It must be held that the defendant has no claim based on the tax sale of 1895 of the particular tract in question. In the absence of any evidence of a tax sale, we cannot find that he is the holder of a void tax-sale certificate so as to entitle him to reimbursement from the county as provided by section 84, c. 132, p. 408, Laws 1890, under which the sale was made, or section 1270, Rev. Codes 1899, which corresponds to the provision on that subject in the former law.

The tax sale to Beck dated January 11, 1901, based on a tax sale in 1897, for the tax of 1895, is void on its face for the same reason that the preceding deed was void. It is conceded that the sale was void because the notice of sale was insufficient. There were certain irregularities in the antecedent tax proceedings, but all of them were merely...