Wilke v. Merchants' State Bank of Richardton, 5905.

• Decision Date: 17 August 1931
• Docket Number: No. 5905.,5905.
• Citation: 61 N.D. 351,237 N.W. 810
• Parties: WILKE v. MERCHANTS' STATE BANK OF RICHARDTON et al.
• Court: North Dakota Supreme Court

61 N.D. 351

237 N.W. 810

WILKE

v.MERCHANTS' STATE BANK OF RICHARDTON et al.

No. 5905.

Supreme Court of North Dakota.

Aug. 17, 1931.

Syllabus by the Court.

Under section 2223, Supplement to the 1913 Compiled Laws, proof of service of notice of expiration of redemption by registered mail on a nonresident owner must show mailing to such owner at his last known post office address; proof of mailing to him at his last known place of residence is insufficient.

Syllabus by the Court.

The service of notice of expiration of redemption required by section 2223, Supplement to the 1913 Compiled Laws, to be made on a resident owner of the property affected or the person in possession thereof, must be made directly upon the person to be served.

Syllabus by the Court.

The record is examined, and held, for reasons stated in the opinion, that, except, as modified in the opinion, the findings and conclusions of the trial court are in accord with the evidence.

Appeal from District Court, Dunn County; Thomas H. Pugh, Judge.

Action by Blanche Wilke against the Merchants' State Bank of Richardton, a corporation, and others. From the judgment rendered, defendants other than M. L. McBride, August Heckel, Christina Heckel, and Dunn County, appeal.

Modified, and, as modified, affirmed.

M. L. McBride and Crawford, Cain & Burnett, all of Dickinson, for appellants.

F. E. McCurdy, of Bismarck, for respondent.

BUTTZ, District Judge.

This is the second time this case is before this court. On the former appeal it was remanded for a new trial because of the unsatisfactory condition of the evidence and the lack of proper parties to make a complete disposition of the action. See Wilke v. Merchants' State Bank, 55 N. D. 603, 215 N. W. 77, where a statement of the facts is set forth.

The complaint was amended, additional parties were brought in, and a retrial of the entire case was had. A very excellent memorandum was filed by the learned trial judge, and we quote therefrom, and adopt, as expressing our views, this language:

“* * * The record shows that John, Gerard, Isadore and Zeno Muggli are brothers. John was cashier of the Merchants State Bank and Gerard and Isadore were assistant cashiers. The Muggli Corporation was organized with the design that it should handle transactions outside the scope of the authority of the bank. The stockholders of this corporation were practically the same as in the Bank. John Muggli was secretary of the Muggli Corporation. The Richardton Corporation was designed to take care of such transactions as neither the Muggli Corporation nor the bank desired to be connected with. Of this corporation Zeno Muggli was president and Gerard Muggli was secretary and vice-president. These two men transacted practically all of the business for the Richardton Corporation and held the meetings for the corporation. William Wilke is the husband of the plaintiff and transacted the business regarding the lands owned by the plaintiff in the vicinity of Richardton, including the lands in dispute herein, and the transactions between the Wilkes and the defendants.

The defendant Heckel purchased under executory contract the land affected by the tax titles hereinafter referred to. It was his obligation to pay the taxes upon the land. This he failed to do and the taxes of 1918 went to sale December 9, 1919, were bought in by Joseph Fisher who assigned the certificate to Fred V. Stein, one of the defendants, February 10, 1923. Fred V. Stein was a resident of Cold Springs, Minnesota, a brother-in-law of John Muggli and stockholder in the bank. He did not pay for the assignments and it is possible he did not know of the assignments until a deed was sent to him to be executed by him transferring the land back to John Muggli. The assignment was paid by check issued by Muggli Company and John repaid Muggli Company. The tax deeds were issued August 14, 1923, to Fred V. Stein. April 21, 1924, Stein conveyed to John Muggli, who in turn conveyed the land to Richardton Corporation.

The questions presented for determination involve: (1) The validity of the tax deeds, and (2) an accounting between the plaintiff and the defendants for grain, rents and profits received or taken by the defendants from the lands belonging to the plaintiff in the vicinity of Richardton.

[1][2] The Tax Deeds. The plaintiff contends the tax deeds are void because * * * notice of expiration of redemption was not served on the plaintiff. There is no controversy that plaintiff was a nonresident of the state, hence the service to be effective must include three distinct acts on the part of the sheriff who must make return thereto. Section 2223, Comp. Laws 1913 (as amended [Comp. Laws Supp. 1925, § 2223]). First, service upon the occupant, if any, of the land; second, mailing to the owner a copy of the notice by registered mail at his ‘last known post office address'; and lastly, the publication of the notice once each week for three consecutive weeks. Hodgson v. State Finance Co., 19 N. D. 139, 122 N. W. 336. The return of the sheriff showing ‘proof of notice’ must be filed with the county auditor before the tax deed may issue.

The sheriff returned that the notice came into his hands on the 19th day of March, 1923; that he found August Heckel in possession of the real estate and on April 3, 1923, he served the notice ‘personally’ on August Heckel by delivering to and leaving with Christine Heckel, a member of his family, etc. He then goes on to say: ‘That I made diligent search and inquiry for Blanche Wilke, the person named in said notice and the person upon whom the said notice was intended to be served but after such search and inquiry I have been unable to find said Blanche Wilke in said Dunn County, North Dakota, upon whom to make service thereof. That I served the said notice upon Blanche Wilke, upon whom the said notice was intended to be served, the said Blanche Wilke being a nonresident of the State of North Dakota, on the 4th day of April, A. D. 1923, by then and there depositing in the post office in the City of Manning, North Dakota, a true and correct copy of said notice; that the said copy so deposited in said postoffice was enclosed in an envelope addressed to said Blanche Wilke at her last known place of residence; namely, Lewiston, Montana, and that postage thereon was paid in full and the same duly registered.’ This return is dated April 4, 1923. It will be noticed that the copies substituted for the original exhibit with reference to the notice and the returns thereto does not show in full the return made by the sheriff. This return does not mention the publication of the notice. However, there was a publication of the notice, but the record is silent as to who procured the publication. The certificate or affidavit of publication appears to have been sworn to April 6, 1923, so that it is fair to conclude it was not filed with the above return. Nor is there any evidence in the record, oral or documentary, when the proof of publication reached the auditor's office, whether before or after the tax deeds were issued. Although the tax deed is prima facie evidence of the regularity of the proceedings leading to its issuance and in the absence of proof to the contrary it will be presumed that the notice was properly given, this standing given to the deed by the statute, section 2206, Comp. Laws 1913, and the attendant presumption as to regularity of service and return, must give way when the evidence discloses facts inconsistent with that presumption. Twedt v. Hanson, 58 N. D. 571, 226 N. W. 615. The proof of service of the notice must show with reasonable certainty that the requirements of the statute have been complied with. Biberdorf v. Juhnke, 59 N. D. 1, 228 N. W. 233, 234. ‘The sheriff's return is conclusive upon the parties and their privies.’ Biberdorf v. Juhnke. The requirements of the statute as to notice must be fully and literally followed to give one the right of redemption. The provisions of the statute are mandatory, are construed strictly in favor of the owner and generally no presumptions with regard to proper service and return thereof will be indulged in. Black on Tax Titles (2d Ed.) § 343; 26 R. C. L. 431, § 388; Biberdorf v. Juhnke, supra; Baird v. Zahl, 58 N. D. 388, 226 N. W. 549;Golden Valley County v. Miller, 57 N. D. 101, 220 N. W. 839.

It is suggested that service on Heckel was service on the owner, inasmuch as Heckel had the beneficial interest in the land, and that plaintiff held the title in trust, and the return shows that Heckel was in possession. Even if this be true, no service contemplated by statute was made on him, for the service contemplated by the statute is personal service. The statute, section 2223, Comp. Laws 1913 (as amended [Comp. Laws Supp. 1925, § 2223]) provides that in addition to publication and mailing, notice shall be served on the person in possession of the real estate. It nowhere speaks of substituted service nor that service may be made as provided for the service of summons as is the case in Minnesota and other jurisdictions. Gordon v. Palmer, 160 Minn. 136, 199 N. W. 895. Personal service is therefore...