State Finance Company v. Mather
| Citation | 109 N.W. 350,15 N.D. 386 |
| Decision Date | 15 May 1906 |
| Court | United States State Supreme Court of North Dakota |
Appeal from District Court, Grand Forks county; Fisk, J.
Action by the State Finance Company against A. C. Mather. Judgment for plaintiff and defendant appeals.
Modified.
Judgment modified.
J. B Wineman and B. G. Skulason, for appellants.
A description is sufficient that is generally understood to refer to the land in question. Gilfillan v. Hobart, 24 N.W. 342; Power v. Bowdle, 3 N.D. 107, 64 N.W 404; Doherty v. Real Estate Title Ins. & Trust Co., 89 N.W. 853; Kampfer v. East Side Syndicate 104 N.W. 290.
The purchase at a tax sale is a contract, and no subsequent statute can import new terms into it, or add to those before expressed. Morgan v. Commissioners, 27 Kan. 89; Forqueran v. Donnelly, 7 W.Va. 114; Merrill v Dearing, 32 Minn. 479; Robinson v. Howe, 13 Wis. 341; Roberts v. First National Bank of Fargo, 8 N.D. 504, 79 N.W. 1049.
The law in force is a part of such contract. Hillebert v. Porter, 28 Minn. 496; Fisher v. Betts, 12 N.D. 197, 96 N.W. 132.
Charles M. Cooley and Wicks, Paige & Lamb, for respondent.
Where the statute has prescribed a form of verification, it must be followed in all essential particulars. Cooley on Taxation (3d Ed.) 761; Shattuck v. Bascom, 105 N.Y. 39; State v. Seahorn, 139 Mo. 582; Steffens v. King, 123 N.Y. 31; Van Rensseler v. Whitberk, 7 N.Y. 517; Gilchrist v. Dean, 29 N.W. 330; Daniels v. Watertown Twp., 28 N.W. 673; Eaton v. Bennett, 10 N.D. 346, 87 N.W. 188; Lee v. Crawford, 10 N.D. 482, 88 N.W. 97; Poldi v. Poldi, 47 N.W. 510.
This is an action in statutory form to determine adverse claims to two tracts of city property. The defendant, Mather, sets up in his answer numerous tax sale certificates under which he claims to have valid liens upon each of the tracts described in the complaint. The trial court held all the tax sale certificates invalid, and judgment was entered to that effect. The defendant appealed from the judgment, and demands a trial de novo.
One of the tracts involved is a piece of ground 22 feet wide extending across two platted lots. In the several tax sale certificates which defendant asserts cover the above-mentioned tract the description of the land sold is as follows: "Grand Forks City, O. T., East middle 22 feet, lot 9, block 21." Even if we could assume that means original townsite, we are at a loss to know what is meant by the "East middle" of a tract of land, and counsel have not enlightened us. The assessments upon which these certificates are based used the same terms in describing the land assessed. The description is meaningless, and, if the tract described in the complaint was in fact the land intended to be taxed, it is plain that the entire tax proceeding was utterly void. The other parcel involved is a strip 47 feet wide extending across both the same lots above mentioned and lies next to the alley which runs back of said lots. That is the sum and substance of the very lengthy description set forth in the complaint. It may be sufficiently designated as the rear 47 feet of each of said lots. Throughout the tax proceedings hereafter referred to, the rear 47 feet of each lot was dealt with as a separate piece of land. They were assessed, taxed, and sold for taxes separately, so that for each sale there were two certificates, one for each lot.
Defendant holds two certificates issued December 7, 1897, for the taxes of 1896. These certificates are barred by the provisions of chapter 165, p. 220, Laws 1901. That enactment amended section 1269, Rev. Codes 1899, by adding thereto the following proviso: "Provided, however, that all rights of such purchaser and his assigns to possession, title or lien of any kind of, to or upon such piece or parcel of land, shall cease absolutely and be deemed forfeited and extinguished, unless possession thereof be taken by him or them, or proceedings for such possession be by him or them instituted, or deed therefor be executed and delivered to him or them by the proper officer, prior to the expiration of six years from and after the date of such certificate, or in case of sales heretofore made and where five years or more have already elapsed since the date of such certificate, then prior to the expiration of one year after the taking effect of this section." This action was commenced in January, 1904, and the certificate became barred December 7, 1903. It is conceded that the defendant has taken no steps to avoid the effect of this law. The power of the legislature is beyond question to limit the time within which a certificate holder shall assert his rights, as such, to the land and to a deed after his right to do so accrues. Such a statute differs in no respect from any other limitation statute. It does not affect the right itself but affects only the remedy. The certificate gives the purchaser a right to take possession of the land after three years, and entitles him to a deed after the termination of the redemption right by the required notice. This act deprives him of none of these rights, but merely requires him to exercise them within a reasonable time after the right shall have accrued. The statute amply protects the rights of the holders of certificates issued before the law took effect by allowing a year for them to enforce their rights after the law took effect. Bank v. Braithwaite, 7 N.D. 358, 75 N.W. 244, 66 Am. St. Rep. 653; Osborne v. Lindstrom, 9 N.D. 1, 81 N.W. 72, 46 L. R. A. 715, 81 Am. St. Rep. 516. The title of the act was clearly sufficient. It is stated in the title that the act was an amendment of section 1269, Rev. Codes of 1899, relating to the rights of purchasers at tax sales. It was not necessary to state in the title the precise point in which such purchasers would be affected. Power v. Kitching, 10 N.D. 254, 86 N.W. 737, 88 Am. St. Rep. 691; State v. Society, 10 N.D. 493, 88 N.W. 273; Erickson v. Cass County, 11 N.D. 494, 92 N.W. 841.
The defendant holds certificates, however, for tax sales in 1898 1899, 1900 and 1902. The plaintiff claims that the several assessment rolls upon which these respective sales are based were not properly verified by the assessor's affidavit, required by section 1219, Rev. Codes 1899. It has been held by this court that the failure of the assessor to verify the assessment roll by attaching the prescribed affidavit, is fatal to a tax sale based on such assessment. Eaton v. Bennett, 10 N.D. 346, 87 N.W. 188. Neither that case nor those it cites involved tax sales governed by the revenue law of 1897 which is the one now in force. Chapter 126, p. 256, Laws 1897; section 1176 et seq., Rev. Codes 1899. In that case the court said in effect that the act of verifying the assessment roll by the prescribed affidavit was a part of the act of assessing, and that a valuation by the assessor, although sufficient in all other respects, was no assessment if the assessor's affidavit was not attached to the roll. This unqualified language was in effect disapproved by the decision in Douglas v. City of Fargo, 13 N.D. 467, 101 N.W. 919. In that case the assessment rolls were not verified by the assessor's oath. The plaintiff in that case, relying on Eaton v. Bennett, asserted that there was no assessment, and hence no tax. The court held that, although the defect might be fatal at law, it was not fatal in equity. It is manifest that if there was no assessment there could be no tax either in law or equity. We hold that the verification of the assessment roll by the assessor is not any inherently necessary part of the act of assessment proper, but is merely a legislative requirement. The act of assessment is performed as to the land when the assessor determines its value. That is all that is inherently necessary, and it is clear that, under our system of real estate taxation, no less will suffice. The assessment must of course be evidenced by some authentic record. It is self-evident that the assessor's affidavit is not inherently essential either to the assessment or as an authentication thereof. The constitution does not expressly or impliedly require it. The provision for the affidavit is a purely legislative requirement. That being so it is plain that the legislature has the power to either dispense with it altogether or to declare that the nonobservance of this requirement shall not be held to be a valid objection to the tax or a tax sale. Beggs v. Paine, 15 N.D. 436, 109 N.W. 322, and Nind v. Myers (just decided) 15 N.D. 400, 109 N.W. 335. In the absence of a curative statute such a defect would, in an action at law, be fatal to the tax, in the sense that it would not support the sale, although not fatal in a court of equity. Douglas v. City of Fargo, 13 N.D. 467, 101 N.W. 919. But the defect is not such a jurisdictional defect as that it cannot be remedied by a limitation act or declared immaterial by the same statute which requires it. Beggs v. Paine and Nind v. Myers. See, also, Williams v. Supervisors, 122 U.S. 154, 7 S.Ct. 1244, 30 L.Ed. 1088. With respect to a tax sale the legislative power to cure or bar objections grounded on the nonobservance of such defects would necessarily be circumscribed by certain constitutional limitations. But this defect is not of that character. In the revenue law of 1897 the legislature exercised this power to its full extent. By section 78 of that law (chapter 126, p. 286, Laws 1897; section 1263, Rev. Codes 1899) the legislature declared that no sale should be invalidated "unless the party objecting to the same shall prove either that the property upon which the tax was levied was not subject to taxation, or that the taxes were...
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