State Finance Company v. Trimble
| Decision Date | 25 June 1907 |
| Citation | 112 N.W. 984,16 N.D. 199 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Stutsman county; Glaspell, J.
Action by the State Finance Company against W. B. S. Trimble and others. From a judgment for plaintiff, defendants appeal.
Modified and affirmed.
Judgment modified. No costs awarded to either party.
Marion Conklin and F. G. Kneeland, for appellants.
John Knauf and Wicks, Paige & Lamb, for respondents.
Action to determine conflicting claims to real estate. Plaintiff alleges that it is the owner in fee of 160 acres of land situated in Stutsman county, described as follows: The N 1/2 of the N E 1/4 and the S E 1/4 of the N E 1/4, and the N E 1/4 of the S E 1/4 of section 12, township 140, range 63--and that the defendants claim certain estates, interests, liens and incumbrances upon the same adversely to the plaintiff. The relief demanded is that the title to said land be quieted in the plaintiff. The plaintiff claims the ownership of the land by virtue of a deed executed and delivered to it by James E. Dore, dated September 17, 1903. The defendants answered, and alleged their absolute ownership of the land by virtue of certain tax sale certificates and deeds, as follows: Sheriff's certificate of sale to Wm. H. Beck under the "Wood Law," dated November 21, 1898. Tax deed to W. H. Beck for 1895 tax, dated January 11, 1901. Tax deed to W. H. Beck for 1896 tax, dated January 11, 1901. The defendant Valeria R. Myers claims title under a deed executed and delivered to David Myers on December 24, 1897. The defendant Trimble claims title by virtue of a tax deed under the 1897 tax, dated June 25, 1903, under the certificate of sale to Beck, which was assigned to him. After a trial, the district court adjudged that the defendants' alleged titles were null and void, and gave judgment for the plaintiff as prayed for. The defendants have appealed from the judgment and request a review of all the evidence in this court, under section 7229, Rev. Codes 1905.
The defendants claim that the plaintiff's title under the Dore deed is void for maintenance. The evidence is the same in this case on that point as in the case of State Finance Co. v. Bowdle, 112 N.W. 76, recently decided by this court. Adhering to that decision as controlling of this case, the objection is held not tenable for the reasons given in that case.
The defendant Beck claims title under a tax deed for the 1895 tax, and also one under the 1896 tax. The objections to the 1895 tax title are: That two tracts were described in one notice of sale, and that two separate tracts were advertised to be offered for sale as one tract, for one sum, as a delinquent tax. The description in the notice of sale was the "N. 1/2 SE 1/4 NE 1/4 and NE 1/4 SE 1/4 Sec. 12, Twp. 140. R. 63--160 acres." This description can mean but one thing, and that is a tract of 20 acres in the N 1/2 of the SE 1/4 of the NE 1/4, and 40 acres in the SE 1/4. These tracts are separate tracts, and the notice did not properly describe them as such, and they could not be sold as one tract, as was done in this case. This irregularity did not vitiate the tax. This fact rendered the sale incurably void, as there was no such notice of sale as required by the statute. There is no evidence, however, that the assessment was void. It is also claimed that there was no legal levy of a tax this year, for the alleged reason that it was made by the board of equalization, and not by the board of county commissioners. The minutes do not show that the equalization board made the levy, although the record of the levy is shown in a record which seems to have been used by both boards for record purposes. We do not find that the record shows that the levy was not made by the county commissioners. There is nothing, therefore, to rebut the presumption that the officers properly performed their duty. Before the proceedings of county commissioners can be successfully attacked as illegal, the proof must first clearly show the illegal act. Without conceding that the objecwould be tenable, if proven, we conclude that making a record of the levy in a wrong book, in which are also recorded proceedings of the board of equalization, is not even prima facie evidence that the county commissioners did not make the levy. There was, therefore, a valid tax for the year 1895.
Tax deeds were issued to the defendant Beck under the 1896 assessment. The tax on which this deed was issued was inherently void. There was no proper description of the land on the assessment roll. The description of the land as assessed was: This is not a description of the tract of land attempted to be assessed. When read as punctuated, it is meaningless. In no way can this description be read to be equivalent to the proper description, which is as follows: N 1/2 of N E 1/4 and the S E 1/4 of the N E 1/4 of S E 1/4. The description was jurisdictionally erroneous. The assessment was void, as well as all subsequent proceedings. There was no tax on which a recovery for the amounts paid can be had. No tender of the tax was necessary in order to maintain the action. Sheets v. Paine, 10 N.D. 103, 86 N.W. 117.
The defendant Beck also claims title under a certificate of sale under chapter 67, p. 76, Laws 1897, commonly known as the "Wood Law." This certificate was dated November 21 1898. The plaintiff's objections to the title conveyed by this certificate of sale are: (1) That the sheriff sold the land under the original judgment book, and not under a certified copy of the judgment. (2) That the certificate of sale contains unerased statements not applicable to the sale in question, and which should have been erased before the delivery of the certificate. Each of these objections was considered and passed upon in Nind v. Myers (N.D.) 109 N.W. 335, and in State Finance Co. v. Beck, 109 N.W. 357, and held not tenable. That decision is controlling...
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