Strand v. Marin

• Decision Date: 25 March 1915
• Citation: 152 N.W. 280,30 N.D. 165
• Parties: STRAND et al. v. MARIN et al.
• Court: North Dakota Supreme Court

30 N.D. 165

152 N.W. 280

STRAND et al.

v.MARIN et al.

Supreme Court of North Dakota.

March 25, 1915.

Syllabus by the Court.

The seed lien or charge which is provided for by chapter 210 of the Laws of 1909, though in some respects treated as a tax, is not a tax in the strict sense of the term so as to be a paramount lien under the provisions of sections 1557 and 1572, Rev. Codes 1905.

A “tax” is an enforced burden or charge imposed by the legislative power upon persons or property to raise money for public purposes (citing Words and Phrases, Tax).

The “seed lien” or charge which is provided for by chapter 210 of the Laws of 1909 is not an enforced burden or charge which is imposed for the purpose of raising money for public purposes.

The seed lien charge which is provided for by chapter 210 of the Laws of 1909 is not paramount to the lien of an antecedent real estate mortgage.

Appeal from District Court, Ward County; Leighton, Judge.

Action by Esther Strand and another against W. A. Marin and Ward County, a municipal corporation, to quiet title. From judgment for plaintiff, Ward County appeals. Affirmed.R. A. Nestos, State's Atty., and Dorr H. Carroll, Asst. State's Atty., both of Minot, for appellant. Thompson & Wooledge, of Minot, for respondents.

BRUCE, J.

This is an action brought by the holder of a sheriff's deed under a mortgage foreclosure to quiet the title to the land purchased by him against the purchaser under a delinquent tax sale arising out of a lien or tax for certain feed and seed sold to the original owner of the land by the county of Ward under the provisions of chapter 210 of the Laws of 1909. The mortgage was dated on the 24th day of November, 1909, and recorded on the 25th day of November, 1909, and the mortgage sale was held on the 20th day of January, 1912; the sheriff's deed being issued on January 21, 1913. The seed, on the other hand, was furnished by the county in the month of May, 1911, the amount of the indebtedness was entered upon the tax list of the county for the year 1911 as taxes on the 13th day of November, 1911, and on the 10th day of December, 1912, the said land was sold at a delinquent tax sale and bought in by the defendant, Ward county. Judgment was entered quieting title in the plaintiffs, and the defendant, Ward county, has appealed. The question at issue is whether the seed lien provided for in chapter 210 of the Laws of 1909 was intended to be and could be made superior to the lien of the mortgage which was executed prior to the furnishing of the seed and such seed being furnished without the knowledge or consent of the mortgagee but after the passage of the act.

[1][2][3][4] It is not necessary for us to pass upon the constitutionality of the act which is before us, nor of any of its provisions. Nor is it necessary for us to decide whether or not such a paramount lien or tax, as is contended for by the defendant, could be created by the Legislature. All that is necessary for us to say is that in our opinion it was not the intention of the Legislature that the lien created by the statute should be considered a “tax” in the technical or ordinary sense of the term, nor that such lien should, by virtue of the provisions of sections 2171 and 2186, be deemed superior to antecedent liens or mortgages. A “tax” is “an enforced proportional contribution of persons and property, levied by authority of the state for the support of the government and for all public needs.” See Adjudged Words and Phrases, vol. 8, pp. 6867 and 6868, and cases cited; 37 Cyc. 706.

Such is not the nature of the charge or indebtedness which is before us, and the mere calling it a tax does not make it such. Yeatman v. King, 2 N. D. 421, 51 N. W. 721, 33 Am. St. Rep. 797. It is in no sense an enforced contribution. It is a voluntary loan which is made by the husbandman not for the support of the machinery of government nor for the general needs of the public, but for the support and needs of the borrower alone. In such a case, indeed, the state is not acting in a governmental capacity but in one which is friendly or paternalistic; not, in short, as an all-powerful governor or autocrat, but as a public-spirited and kind-hearted banker or business man. It loans money and makes a...