Van Raden Homes, Inc. v. Dakota View Estates

Decision Date25 April 1996
Docket NumberNo. 950131,950131
Citation546 N.W.2d 843
PartiesVAN RADEN HOMES, INC., a corporation, Plaintiff and Appellee, v. DAKOTA VIEW ESTATES, a partnership, Hugo Olson, Kenneth V. Nordling, and other persons unknown claiming an estate or interest in, or lien or encumbrance on a property described in the Complaint, Defendants. Benny E. Peterson, Curtis Mitskog, Robert Hastings, Delph Kundert, American Bank and Trust Company, as trustee of Byron Ogren, deceased, Defendants and Appellants. Civil
CourtNorth Dakota Supreme Court

Wold Johnson, P.C., Fargo, for plaintiff and appellee; argued by J. Philip Johnson.

Garaas Law Firm, Fargo, for defendants and appellants; argued by David A. Garaas.

MESCHKE, Justice.

A group of former owners ("Peterson") appeal from a judgment quieting title to six lots in Van Raden Homes, Inc., who purchased them from Cass County after tax sales. We agree with the trial court that Peterson failed to prove the tax sales were jurisdictionally defective, and we affirm.

Peterson challenges the validity of the tax title to six lots in the City of Fargo purchased by Van Raden from Cass County in November 1992. The county acquired the lots by sales for nonpayment of taxes. To aid comprehension, we briefly summarize the intricate statutory scheme regulating tax sales.

When taxes are levied, each county auditor prepares a "tax list" detailing the ownership and amount of levied taxes for each parcel of property in the county. See NDCC 57-20-02 & 57-20-03. The auditor gives the tax list to the county treasurer, see NDCC 57-20-06, who mails tax statements to the property owners at their last known address. See NDCC 57-20-07.1. If the taxes are not paid, the treasurer mails each owner a notice that their property will be sold at the annual tax sale in December if they do not pay the delinquent taxes. See NDCC 57-24-01; see also NDCC 57-24-02 (auditor to post delinquent tax list) & 57-24-07 (auditor to publish notice of tax sale). If the taxes remain unpaid, the auditor can sell the property at a public auction on the second Tuesday in December for a bid equal to the total amount of taxes, penalties, and sale costs. See NDCC 57-24-12. If there is not a private bidder at the sale, the treasurer bids for the county and, under NDCC 57-24-14, the county acquires rights to the property.

After the tax sale, any party with a property interest at the time of the tax sale can redeem the property from the county by paying the amount the property sold for, plus interest, before the expiration of the redemption period. See NDCC 57-26-02 & 57-26-03(2). When the county acquires the property at the tax sale, NDCC ch. 57-28 governs the rights of the county when the property is not redeemed. If the property remains unredeemed three years after the county acquires it at the tax sale, the auditor notifies interested parties by June 1 that the redemption period will expire on October 1, see NDCC 57-28-01 & 57-28-02, and publishes notice of the expiration of the redemption period by August 1. See NDCC 57-28-06. If the property is still unredeemed by the expiration of the redemption period on October 1, NDCC 57-28-09 authorizes the auditor to issue a tax deed to the county.

The 1987-1991 real estate taxes for these six lots were not paid. On December 13, 1988, the Cass County auditor offered the lots for sale at the annual auction for nonpayment of the 1987 taxes. There were no private bids, and Cass County acquired the lots and received tax sale certificates for each. See NDCC 57-24-19 & 57-24-23. In 1992, the county served and published notice that the expiration period would expire on October 1, 1992. The lots were not redeemed, and the auditor deeded the lots to Cass County on November 17, 1992. Later that same day, the county deeded the lots to Van Raden.

On February 19, 1993, Van Raden sued the former owners to quiet title on the lots. The trial court dismissed the action, concluding the county's failure to publish the notice of the expiration of the redemption period three times was a jurisdictional defect that voided the county's tax deeds. Van Raden appealed, and we reversed and remanded. See Van Raden Homes, Inc. v. Dakota View Estates (Van Raden I ), 520 N.W.2d 866 (N.D.1994) (holding only one publication of notice of expiration of redemption period was required when county purchased lots at tax sale). After trial on remand, the trial court quieted title in Van Raden. Peterson appeals.

For a valid tax sale, "there must be strict compliance with mandatory and jurisdictional requirements of the relevant statutes, and those statutes will be strictly construed in favor of the owners of the property." Fibelstad v. Grant County, 474 N.W.2d 54, 61-62 (N.D.1991); see also Van Raden I, 520 N.W.2d at 868. However, a failure to redeem property sold at a tax sale before the expiration of the redemption period waives "all errors, irregularities, or omissions which do not affect the substantial rights of the parties, except jurisdictional defects." NDCC 57-28-08(3) (emphasis added). The "concept of a 'jurisdictional defect' can differ depending on the context of the challenge to the tax sale proceedings." Fibelstad, 474 N.W.2d at 59. Therefore, when a tax sale is not attacked until after the expiration of the redemption period, the court must determine if the asserted defect is "jurisdictional." If it is not, the failure to redeem before the expiration of the redemption period waives the asserted defect.

Peterson argues that three "jurisdictional" defects in this tax sale voided Van Raden's tax title: (1) improper notice of the 1988 tax sale; (2) improper service of notice of the expiration of the redemption period; and (3) improper publication of notice of the expiration of the redemption period. Because we agree with the trial court that Peterson failed to meet the burden of proof for the first two asserted jurisdictional defects, and because we find adequate publication notice in this case, we affirm.

1. Notice of Tax Sale.

Peterson asserts the notice of the tax sale "was not made within the proper time period, was not sent to each owner, and ... only warned of the taxes being sold and not the lots." Peterson argues that the failure to mail proper notice of the December 1988 tax sale to each owner of the lots is a jurisdictional defect that voids Van Raden's tax title. We agree that the failure to give a required notice of a tax sale is a jurisdictional defect. Fibelstad, 474 N.W.2d at 61. However, we agree with the trial court that Peterson failed to prove that the county did not give a required notice of the tax sale.

While conclusions of law are fully reviewable on appeal, we will only set aside a trial court's findings of fact if they are clearly erroneous. Gajewski v. Taylor, 536 N.W.2d 360, 362 (N.D.1995). As we explained in Mahoney v. Mahoney, 538 N.W.2d 189, 192 (N.D.1995), a "finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports it or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made."

Here, on notice of the 1988 tax sale, the trial court found:

At trial Benny Peterson presented his notice of the 1988 tax sale. The notice was addressed to "Peterson, Benny E. and American Bank and Trust Company, et. al., 737 Center Ave., Moorhead". The notice is not dated. There is no proof that the notice was not given to the other record holders....

The trial court then concluded:

The answering [Peterson] Defendants contend that the notice of the 1988 tax sale was defective because it was not sent to all owners of the property. The evidence presented failed to establish that notice of the tax sale was not sent to all record owners. It is the [Peterson] Defendants' burden to prove that notice of such sale as required by law was not given, and the [Peterson] Defendants have not sustained that burden.

Peterson argues that, because Van Raden was "claiming under a tax title," Van Raden "had the burden of proving the regularity of the tax proceedings," and that the "trial court erroneously believed that [Peterson] had the burden of proof to show that notice as required by law had not been given." We disagree.

"A [tax] deed issued [to the county] under this section is prima facie evidence of the truth and regularity of all facts and proceedings before the execution of the deed." NDCC 57-28-09. "Where the statute makes a tax deed prima facie evidence of the regularity of all the proceedings leading up to the execution of the deed, the burden is upon the person attacking the tax title to prove that the tax title is jurisdictionally defective." Peterson v. Reishus, 66 N.D. 436, 266 N.W. 417, Syllabus 2 (1936); see also Brink v. Curless, 209 N.W.2d 758, 765 (N.D.1973), overruled on other grounds by City of Bismarck v. Muhlhauser, 234 N.W.2d 1, 5 (N.D.1975). Therefore, Peterson had the burden to prove that Van Raden's tax title was jurisdictionally defective.

Specifically, a tax sale certificate is "prima facie evidence that all the requirements of law with respect to the sale have been complied with...." NDCC 57-24-29; see Fibelstad, 474 N.W.2d at 58 ("The tax sale certificate is given a significant curative effect."). Section 57-24-29 also confines the delinquent taxpayer to four potential grounds for attacking the tax sale, including inadequate notice of the sale: "No sale may be set aside nor held invalid, unless the party objecting to the same proves that ... [n]otice of such sale as required by law was not given." NDCC 57-24-29 (emphasis added). This statute clearly places the burden upon the delinquent taxpayer to prove that all owners did not receive proper notice of the impending tax sale. See Fish v. France, 71 N.D. 499, 508, 2 N.W.2d 537, 542 (1942) ("The burden ... is upon the plaintiffs to show that the required notice was not given."); see also Remmich v. Wagner, 77...

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4 cases
  • Higgins v. Trauger, No. 20010073
    • United States
    • United States State Supreme Court of North Dakota
    • August 29, 2001
    ...57-24, 57-26, and 57-27. See Peplinski v. County of Richland, 2000 ND 156, ¶¶ 6-8, 615 N.W.2d 546, and Van Raden Homes, Inc. v. Dakota View Estates, 546 N.W.2d 843, 845-46 (N.D.1996), for general discussions of the process. The dispute in this case focuses on the redemption [¶ 12] Maria Hig......
  • Dahn v. Trownsell, s. 20185
    • United States
    • Supreme Court of South Dakota
    • February 18, 1998
    ...the person entitled to redeem one last opportunity to learn that the redemption period is about to expire. Van Raden Homes, Inc. v. Dakota View Estates, 546 N.W.2d 843, 854 (N.D.1996). 4 "Where the [person] charged with the duty of giving notice of expiration of the period of redemption to ......
  • Estate of Glasoe v. Williams Cnty., 20150095.
    • United States
    • United States State Supreme Court of North Dakota
    • January 19, 2016
    ...will be strictly construed in favor of the owners whose property is being foreclosed. See Van Raden Homes, Inc. v. Dakota View Estates, 546 N.W.2d 843, 846 (N.D.1996).[874 N.W.2d 314A [¶ 7] The Glasoes argue the district court erred in ruling the County complied with the service requirement......
  • Peplinski v. County of Richland, 990376.
    • United States
    • United States State Supreme Court of North Dakota
    • August 18, 2000
    ...by that statute, not the posting of the list of delinquent lands." K & L Homes, at 378-79. [¶ 13] In Van Raden Homes, Inc. v. Dakota View Estates, 546 N.W.2d 843, 847-48 (N.D.1996), we held there was no jurisdictional defect in a tax sale notice which was mailed to the property owner in Aug......
4 books & journal articles
  • CHAPTER 2 ADVANCED MINERAL CONVEYANCING AND TITLE ISSUES - PART 2
    • United States
    • FNREL - Special Institute Advanced Mineral Title Examination (FNREL)
    • Invalid date
    ...North Dakota Title Standards (2012). [92] 2000 ND 156, 615 N.W.2d at 549-50. See also, Van Raden Homes, Inc. v. Dakota View Estates, 546 N.W.2d 843, 845-46 (N.D. 1996). [93] N.D. Cent. Code § 57-20-26 . [94] Id. § 57-28-19 . [95] Id. § 57-28-13 . [96] Id. § 57-28-04(1) . In Peplinski v. Cou......
  • CHAPTER 5 COMMON AND COMPLEX ISSUES IN PREPARATION OF A TITLE OPINION - A CLOSER LOOK
    • United States
    • FNREL - Special Institute Oil and Gas Mineral Title Examination (FNREL)
    • Invalid date
    ...Title Standards); Dennison v. N.D. Dept. of Human Svcs., 640 N.W.2d 447 (N.D. 2002); Van Raden Homes, Inc. v. Dakota View Estates, 546 N.W.2d 843 (N.D. 1996); See also Enke, An Overview and Interpretation of State Title Standards, LAND AND PERMITTING 7-1 (Rocky Mt. Min. L. Fdn. 1994)(discus......
  • CHAPTER 8 COMMON ISSUES IN PREPARATION OF A TITLE OPINION
    • United States
    • FNREL - Special Institute Nuts & Bolts of Mineral Title Examination (FNREL)
    • Invalid date
    ...Title Standards); Dennison v. N.D. Dept. of Human Svcs., 640 N.W.2d 447 (N.D. 2002); Van Raden Homes, Inc. v. Dakota View Estates, 546 N.W.2d 843 (N.D. 1996); See also Enke, An Overview and Interpretation of State Title Standards, LAND AND PERMITTING 7-1 (Rocky Mt. Min. L. Fdn. 1994)(discus......
  • CHAPTER 7 COMMON ISSUES IN PREPARATION OF A TITLE OPINION
    • United States
    • FNREL - Special Institute Mineral Title Examination (FNREL) 2012 Ed.
    • Invalid date
    ...Title Standards); Dennison v. N.D. Dept. of Human Svcs., 640 N.W.2d 447 (N.D. 2002); Van Raden Homes, Inc. v. Dakota View Estates, 546 N.W.2d 843 (N.D. 1996); See also Enke, An Overview and Interpretation of State Title Standards, LAND AND PERMITTING 7-1 (Rocky Mt. Min. L. Fdn. 1994)(discus......

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