Sturgeon v. King
| Decision Date | 25 March 1933 |
| Docket Number | 6112 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Billings County, Pugh, J. The plaintiff appeals from a judgment denying his application for a writ of mandamus against W. F. King, Auditor of Billings County, to compel said County Auditor to issue a tax deed.
Affirmed.
J P. Cain and J. W. Sturgeon, for appellant.
A redemptioner may be permitted to redeem after time if his failure to redeem within the time designated by statute is occasioned by the fault or mistake of an officer. 37 Cyc 1418.
A sufficient tender of payment will ipso facto work redemption but to have this effect the tender must be for the full amount which the purchaser is entitled to receive and must be made in due time and manner and must be specific. 37 Cyc. 1141; 26 R.C.L. 428; State ex rel. Bell v. McCullough (Mont.) 279 P. 246.
In a suit to redeem from a tax sale, where the owner of the original record title has failed to deposit a sufficient sum of money for redemption, the court cannot allow him to pay the additional amount after suit is begun. Rousseau v. Riihiniemi (Mich.) 153 N.W. 23; Hewson v. Owens (Iowa) 10 N.W. 674; Payne v. Boynton (Mich.) 82 N.W. 816.
The person having the right to redeem must avail himself of that right during the time fixed by statute. Easton v. Doolittle (Iowa) 69 N.W. 672.
W. J. Ray and Simpson, Mackoff & Kellogg, for respondent.
The burden of overcoming the presumption that official duty has been regularly performed rests upon those who attack the regularity of an officer's proceedings. Fisher v. Betts & Smith, 12 N.D. 199, 96 N.W. 132; Hannah v. Chase, 4 N.D. 351, 61 N.W. 18; Walton v. Olson, 40 N.D. 571, 170 N.W. 107; State ex rel. v. Milholland, 50 N.D. 184, 195 N.W. 292.
If the officer making the redemption permits the redemption for less that the amount due, the redemption is not invalid and the officer making the redemption becomes personally liable for the amount deficient. Drew v. Bowman County, 60 N.D. 410, 235 N.W. 139; Forrest v. Henry, 33 Minn. 434; Bubb v. Tompkins, 47 Pa. 359.
The law favors the redemptioner and redemption statutes are liberally construed in favor of the person entitled to redeem. Pike v. Richardson, 136 Mich. 414, 99 N.W. 398; King v. Boettcher, 96 Neb. 319, 147 N.W. 836.
The plaintiff applied for a writ of mandamus to compel the defendant, as auditor of the county of Billings, to execute and deliver to him a tax deed. The trial court denied the application and the plaintiff has appealed.
The plaintiff was the owner and holder of certain tax sale certificates against lands in Billings county based upon the sale for delinquent taxes held December 11, 1928. The plaintiff presented these certificates to the county auditor on June 26, 1931, and demanded that such auditor cause notice of expiration of time of redemption to be given. Such notice was issued and served. December 11, 1931, was fixed as the time when the redemption period would expire. The amount required to redeem was $ 143.73. On December 9, 1931, the county treasurer received a check for $ 104.07 from a party holding a mortgage against the land. The letter transmitting the check instructed the treasurer to telephone to the representative of the party seeking to make the redemption, in event the amount of the check was insufficient, and stated that such representative had instructions to pay any additional sum required to effect the redemption. In accordance with this direction the treasurer telephoned such representative and it is undisputed that the additional sum of $ 39.65 was transmitted to, and received by, the county treasurer. The sole question in controversy in this proceeding is whether this additional sum was received on or before December 11, 1931. It is the contention of the plaintiff that it was not received until December 12th and that, consequently, no redemption was effected and that he is entitled to a tax deed. The undisputed evidence shows that about 5 o'clock P.M., on December 11th, the plaintiff called the defendant, county auditor, on long distance telephone and inquired if a redemption had been made and that the county auditor informed him that the additional moneys had been received and a redemption had been perfected. Some days later the petitioner received a warrant from the county auditor for the redemption money. The warrant was cashed and the moneys retained for the reason, as plaintiff says, that he relied upon the statement of the auditor that the redemption moneys had been paid in time. During the latter part of January, 1932, the plaintiff had a conversation with the county auditor in regard to some other lands on which he held tax sale certificates. During that conversation the auditor intimated that it would make no difference to him if the owners of the lands were two or three days late in payment of the redemption money; that he would accept the same anyhow. The plaintiff says he then began to have some doubt as to whether the treasurer had received the redemption money involved in this case on or before December 11, 1931. On February 9, 1932, the plaintiff saw the county auditor and the county treasurer as regards the redemption in question here and, on examination of the books of the county treasurer, found that the moneys paid for the redemption in question here did not appear in the daily cash balance of December 11, 1931, but in the daily cash balance of December 12, 1931. The plaintiff thereupon offered to return the money to the county auditor and demanded that the certificate of redemption be cancelled and a tax deed issued to him. The demand was refused and the plaintiff thereupon instituted this proceeding.
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