Trustee Loan Co. v. Botz
| Decision Date | 09 July 1917 |
| Docket Number | 1915 |
| Citation | 164 N.W. 14,37 N.D. 230 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ward County, Leighton, J.
Affirmed.
Judgment of the District Court affirmed, with costs.
Palda & Aaker and I. M. Oseth, for appellant.
Where there is jurisdiction to sell the land for taxes, the fact that an erroneous item was included which rendered the amount excessive will not defeat the whole sale. Beggs v Paine, 15 N.D. 436, 109 N.W. 322; Smith v. Auditor General, 138 Mich. 582, 101 N.W. 807; Hall v. Moore 3 Neb. (Unof.) 574, 92 N.W. 294; Shuttuck v Smith, 6 N.D. 73, 69 N.W. 5; Darling v. Purcell, 13 N.D. 288, 100 N.W. 726.
Parties in interest are given relief from such errors without disturbing the sale. Laws 1897, chap. 67, p. 85; Comp. Laws 1913, § 2193; Shuttuck v. Smith, 6 N.D. 73, 69 N.W. 5; Sutherland v. Brooklyn, 87 Hun, 82, 33 N.Y.S. 959; People ex rel. McColgan v. Palmer, 10 A.D. 395, 41 N.Y.S. 760.
"A situation will not be assumed in the absence of proof to defeat the acts of an officer apparently clothed with authority and discharging duties imposed upon him by statute." Fred Miller Brewing Co. v. Capital Ins. Co. 111 Iowa 590, 82 Am. St. Rep. 529, 82 N.W. 1023; Douglas v. Fargo, 13 N.D. 467, 101 N.W. 919.
"The fact that no affidavit of the posting of a notice of tax sale, as required by law, is found in the files and records, is not rebutting evidence of the recitals of the tax certificate that the notice was duly given." Cook v. John Schroeder Lumber Co. 85 Minn. 374, 88 N.W. 971; Bryant v. Estabrook, 16 Neb. 217, 20 N.W. 245; Alling v. Woodward, 2 Neb. (Unof.) 235, 96 N.W. 127; Gallentine v. Fullerton, 67 Neb. 553, 93 N.W. 932; Fisher v. Betts, 12 N.D. 197, 96 N.W. 132; Bullis v. Marsh, 56 Iowa 747, 2 N.W. 578, 6 N.W. 177; Cruser v. Williams, 13 N.D. 284, 100 N.W. 721.
The only just finding that could be made from the evidence is that the money was paid in at the time provided by law, and the recital in the certificate is entitled to every fair presumption. Beggs v. Paine, 15 N.D. 436, 109 N.W. 322; State Finance Co. v. Mather, 15 N.D. 386, 109 N.W. 350, 11 Ann. Cas. 1112; Shuttuck v. Smith, 6 N.D. 73, 69 N.W. 5; Darling v. Purcell, 13 N.D. 288, 100 N.W. 726; Black Tax Titles, § 243.
It does not amount to an extending of credit for the officer conducting the tax sale to postpone payment to a time just following the sale. Farmers' Loan & T. Co. v. Wall, 129 Iowa 651, 106 N.W. 160; Minnesota Debenture Co. v. Scott, 106 Minn. 32, 119 N.W. 391; Minn. Rev. Laws 1905, § 937; "Forthwith," Neb. Comp. Stat. chap. 77, art. 1, § 111; Green v. Hellman, 61 Neb. 675, 86 N.W. 912; Leavitt v. S.D. Mercer Co. 64 Neb. 31, 89 N.W. 426; Ure v. Bunn, 3 Neb. (Unof.) 61, 90 N.W. 904; Cook v. John Schroeder Lumber Co. 85 Minn. 374, 88 N.W. 971.
The notice of expiration of time for redemption of lands from tax sale may contain several descriptions where all were assessed to one person, and sold to same purchaser at sale. Snyder v. Ingalls, 70 Minn. 16, 72 N.W. 807; Funson v. Bradt, 105 Iowa 471, 75 N.W. 337; Flint Land Co. v. Godkin, 136 Mich. 668, 99 N.W. 1058; Nycun v. Raymond, 73 Iowa 224, 34 N.W. 819.
"It is conceded that the legislature might, had it desired, have omitted any provision for notice of the expiration of the time of redemption." Munroe v. Donovan, 31 N.D. 235, 153 N.W. 461; Black, Tax Titles, 2d ed. § 350; Beggs v. Paine, 15 N.D. 451, 109 N.W. 322.
The determination of the auditor, of the sufficiency of the notice as evidenced by the recitals in the deed, shall be conclusive. Comp. Laws 1913, § 2206; Chippewa River Land Co. v. J. L. Gates Land Co. 118 Wis. 345, 94 N.W. 37, 95 N.W. 954; Marx v. Hanthorn, 12 Sawy. 374, 30 F. 579; Maguiar v. Henry, 4 Am. St. Rep. 188, note; Crisman v. Johnson, 58 Am. St. Rep. 224 and note, 23 Colo. 264, 47 P. 296; Hurley v. Powell, 31 Iowa 64; Larson v. Dickey, 39 Neb. 463, 42 Am. St. Rep. 595, 58 N.W. 167; Miller v. Miller, 96 Cal. 376, 31 Am. St. Rep. 229, 31 P. 247; Soukup v. Union Invest. Co. 84 Iowa 448, 35 Am. St. Rep. 317, 51 N.W. 167.
Bradford & Nash, for respondents.
The land involved was sold for a general tax and for special assessments of the city of Minot. Certainly as a sale for special assessments it was void. Comp. Laws 1913, § 3733.
"In order to constitute a valid sale, it is necessary that the provisions of the statute authorizing the sale and describing the nature thereof be complied with strictly." 2 Page & J. Taxn. by Assessment, §§ 1174, 1179; Gage v. Waterman, 121 Ill. 115, 13 N.E. 543.
"A sale for an amount in excess of the amount provided by statute, namely, the amount of legal taxes, penalties, and costs charged against the land, renders the sale void." Lee v. Crawford, 10 N.D. 482, 88 N.W. 97; Cooley, Taxn. 2d ed. p. 497, and cases in note 2; Desty, Taxn. p. 972; Comp. Laws 1913, § 2193.
Where a question is not presented and considered in a case, an opinion upon it amounts to mere dictum. Shuttuck v. Smith, 6 N.D. 77, 69 N.W. 5.
The notice of sale shall contain a list of the lands to be sold and the amount of taxes and penalty due. This notice is vital to all after proceedings in connection with a tax sale. Whatever provision the law makes in regard to this must be strictly complied with. Black, Tax Titles, § 209; Alexander v. Pitts, 7 Cush. 503; Chouteau v. Hunt, 44 Minn. 173, 46 N.W. 341; Mather v. Darst, 13 S.D. 75, 82 N.W. 407; 2 Page & J. Taxn. by Assessment, § 1178; Gage v. Waterman, 121 Ill. 115, 13 N.E. 543.
"A deviation however small is fatal, because a rule of law cannot be made to fluctuate according to the degree or extent of its violation." Black, Tax Titles, § 207, pp. 258, 259; 37 Cyc. 1296; Clarke v. Strickland, 2 Curt. 439, Fed. Cas. No. 2,864; California Loan & T. Co. v. Weis, 118 Cal. 489, 50 P. 697; Mann v. People, 102 Ill. 340; Cole v. Van Ostrand, 131 Wis. 454, 110 N.W. 884.
"A tax sale must be made for cash." Cushing v. Longfellow, 26 Me. 306; Black, Tax Titles, § 243; Comp. Laws 1913, § 2195.
The notice of redemption must clearly state the actual sum required to redeem each piece of land sold for taxes. It must give full information as to just what is required to make redemption as by law provided. 27 Cyc. 1400, 1401, and cases cited in note 24; White v. Smith, 68 Iowa 313, 25 N.W. 115, 27 N.W. 250; Adams v. Burdick, 68 Iowa 666, 27 N.W. 911; Snyder v. Ingalls, 70 Minn. 16, 72 N.W. 807; Ambler v. Patterson, 80 Neb. 570, 114 N.W. 781, 117 N.W. 990; G. F. Sanborn Co. v. Johnson, 148 Mich. 405, 111 N.W. 1091; Haden v. Closser, 153 Mich. 182, 116 N.W. 1001; Jackson v. Mason, 143 Mich. 355, 106 N.W. 1112; John Duncan Land & Min. Co. v. Rusch, 145 Mich. 1, 108 N.W. 494; 37 Cyc. 1402, 1403, and cases cited; Blessett v. Turcotte, 20 N.D. 151, 127 N.W. 505; Black Tax Titles, § 337.
A person holding a tax certificate has the right to pay subsequent taxes, and take receipts, and hold them as additional liens against the premises. Rev. Codes 1905, § 1596; Comp. Laws 1913, § 2211; State ex rel. Moore v. Furstenau, 20 N.D. 542, 129 N.W. 81.
A tax deed is not conclusive of the fact that all proceedings leading up to it were regular. "If a tax deed is conclusive evidence of notice where there is no notice, the provision constitutes a most dangerous trap, instead of a protection to property owners." Lee v. Crawford, 10 N.D. 482, 88 N.W. 97; O'Neil v. Tyler, 3 N.D. 47, 53 N.W. 434; State Finance Co. v. Mulberger, 16 N.D. 214, 125 Am. St. Rep. 650, 112 N.W. 986; Fisher v. Betts, 12 N.D. 197, 96 N.W. 132.
An appeal from a judgment of the district court of Ward county and involving the validity of a certain tax deed to certain real estate.
The complaint is one in the statutory form for quieting title. The complaint of the plaintiff is in the statutory form. The plaintiff relies upon the validity of a certain tax deed.
The defendant answers, alleging that she is the owner of the premises described in the complaint; that her title was derived by virtue of United States patent from the United States government to Solomon G. Comstock, for certain described lands, he deeding the land to Northwestern Land Company; that the original town site of Minot, North Dakota, was platted by the Northwestern Land Company, said plat being duly recorded in Ward county; that lots 6 and 7, block 5, and lots 19 and 20 of said block 5, of the original town site of Minot, being part of said land so patented and platted, were by various transfers to warranty deeds eventually transferred to Millie Botz, and since she has received said transfers of such lands she has not alienated them,--in other words, she claims ownership of said lands by a perfect chain of title proceeding from the government patent and the warranty deeds of other grantors, until a perfect title in fee to said lots was placed in her.
The defendant, further answering, alleges that the only interest or claim of interest of the plaintiff in and to said premises is under and by virtue of a certain purported tax deed issued by the county auditor of Ward county, North Dakota, to the plaintiff on the 8th day of July, 1914, under and by virtue of a purported sale of said premises for tax deeds for the year 1908; and further alleges that the said sale for taxes for the year 1908 was and is void for the reason that no notice of the sale of said premises was given; that the amount bid at the purported sale for the premises heretofore described was not paid into the county treasurer or county auditor before the close of the sale, as provided by law, and that the property was not again offered before the close of the...
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