Wittrock v. Weisz
| Decision Date | 25 October 1955 |
| Docket Number | No. 7497,7497 |
| Citation | 73 N.W.2d 355 |
| Parties | Augusta WITTROCK, Raymond Wittrock, Zyril Wittrock, Louis Wittrock, Plaintiffs and Appellants, v. George WEISZ, Thomas Stevens, Marie Stevens, Williams County, North Dakota, a Public Corporation, A. W. Wang, as County Auditor of Williams County, North Dakota, A. M. Fruh, The Superior Oil Company, a Foreign Corporation, Stanolind Oil and Gas Company, a Foreign Corporation, W. B. Scott, and all other persons unknown, having or claiming to have any right, title, interest in or to, or lien or encumbrance upon the premises described in the Complaint, Defendants and Respondents. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Valid tax titles can be acquired only after full compliance with the provisions of the law intended for the protection of those having the right to redeem.
2. The insertion in the notice of expiration of the period of redemption, published and mailed but not received, of the wrong name as that of the record title owners is fatal to the validity of the notice.
3. Effort on part of County Auditor to give further notice of expiration of period of redemption in a manner not prescribed by the statute, in absence of showing that the owners were misled thereby was of no effect.
4. A tax deed issued without strict compliance with the statutory requirements as to the service of the notice of the expiration of the period of redemption is void.
5. The statutory right to repurchase is a law of property; to perfect the right requires no action at law or equity but merely a tender of money.
6. The statutory right to repurchase comes into being when the county acquires a tax deed valid on its face.
7. The possession of the county under tax deed valid on its face is not adverse to the former owner.
8. Laches does not arise from delay or lapse of time alone, but party against whom laches in asserting title to realty is sought to be invoked must be actually or presumptively aware of his rights and must fail to assert them against party who in good faith permitted his position to become so changed that he could not be restored to his former state.
Hyland, Foster & Conmy, Bismarck, for plaintiffs and appellants.
E. C. Rudolph, Ray, for George Weisz, defendant and respondent. Rausch & Chapman, Bismarck, of counsel.
The plaintiffs, Augusta Wittrock, Raymond Wittrock, Zyril Wittrock and Louis Wittrock, record title owners, seek to quiet title to the E 1/2 NW 1/4, W 1/2 NE 1/4 in Section 14, Township 156, North of Range 97, West of the Fifth Principal Meridian, being in Williams County, North Dakota, to which land Williams County took tax deed on March 1, 1940 for unpaid taxes for the year 1930 and which land was subsequently sold to the answering defendant, George Weisz, on contract dated November 19, 1943 and executed February 16, 1944, and followed by county deed dated June 9, 1947.
The plaintiffs commenced this action in September of 1952. The defendant George Weisz, was the lessee of the land from 1928 to 1940 leasing from the plaintiffs. John G. Weisz, son of the defendant, George Weisz, leased the land from the County for the years 1940, 1941 and 1942, during all of which time he lived with his father the defendant, George Weisz, and during which time they owned machinery together and worked together.
On May 24, 1939 the County Auditor of Williams County issued a notice of expiration of the period of redemption based on the sale held December 8, 1931 to the County of the 1930 taxes. The notice erroneously named 'Louis B. Wittrock, (heirs)' as the record title owner instead of Augusta Wittrock, Raymond Wittrock, Zyril Wittrock and Louis Wittrock, who were in fact the record title owners. Service of this notice appears to have been made in accordance with Chapter 235 of the Session Laws of North Dakota for 1939 with this exception, in the notice published in the official newspaper of Williams County the name of the record title owner was stated as being 'Louis B. Wittrock (heirs)'. Notices were also mailed by registered mail addressed to each of the plaintiffs giving the postoffice address of Ray, North Dakota, and each envelope contained a copy of the notice of the expiration of the period of redemption naming 'Louis B. Wittrock (heirs)' as the record title owners. However, all of the mailed notices were returned to the County Auditor by the postoffice department marked 'unclaimed' and 'unknown' and were never received by any of the addressees. Tax deed dated March 1, 1940 was issued to the County of Williams.
The publication of the notice of the expiration of the period of redemption is for the protection and benefit of all persons who may have an interest in the property about to be sold. The formal notice as prescribed by the statute recites as follows 'Opposite each description of real estate appears the name of the record title owner thereof as it appears by the records in the office of the Register of Deeds of such County. * * *' (Emphasis supplied.) As provided by statute, Subsection (a), Chapter 235 of the Session Laws of North Dakota for 1939, the County Auditor of Williams County did request and did obtain from the Register of Deeds and the Clerk of Court a certified list giving the names of all persons who appear to be interested as owners, mortgagors, lienholders or otherwise, in such real estate, but the County Auditor, it is obvious from the certificate, an exhibit in this case, misunderstood or did not follow the information placed thereon by the Register of Deeds. A final decree of distribution in the matter of the estate of Louis B. Wittrock, who died in 1914, was entered by the County Court dated August 28, 1916 decreeing the land in question to the plaintiffs and a certified copy thereof was recorded in the office of the Register of Deeds on September 19, 1916 in Book 45 of Deeds on page 458. The law in force at that time, being Chapter 252 of the Session Laws of North Dakota for 1915 provided a final decree of distribution could be recorded without regard to whether or not the real estate taxes were paid and further providing that only a deed or patent was required to carry thereon the County Auditor's certificate relative to taxes. Therefore it is logical to assume that there was no record made of the transfer in the office of the County Auditor at the time the final decree of distribution was placed on record. When the certificate of the Register of Deeds was obtained by the County Auditor on October 22, 1938, as stated above, it was either misinterpreted or not followed by that office in the preparation of the notice of the expiration of the period of redemption. It is apparent from the instrument itself that the Register of Deeds did in fact state thereon the names of the record title owners, although because of lack of room on the printed form used for that purpose, the Register of Deeds placed the names of the record title owners under the heading printed thereon 'mortgagors and lienholders', he took the precaution of writing under those names 'No mtg.', meaning no mortgages. It is therefore apparent to the Court that the Company Auditor in setting up his notice of expiration of the period of redemption did not follow the source of the information prescribed by statute in obtaining the names of the record title owners and therefore there was not sufficient compliance with the statute. Thus the property being proceeded against was not identified by the published name of the record title owners. The statute requiring notice of the expiration of the period of redemption must be strictly complied with in order to terminate the owners right to redeem. Knowlton v. Coye, 76 N.D. 478, 37 N.W.2d 343; Messer v. Henlein, 72 N.D. 63, 4 N.W.2d 587. Valid tax titles can be acquired only after full compliance with the provisions of the law intended for the protection of those having the right to redeem. State ex rel. State Bank of Streeter v. Weiler, 67 N.D. 593, 275 N.W. 67; Knowlton v. Coye, supra. The insertion in the notice of the expiration of the period of redemption--published and mailed but not received--of the wrong name as that of the record title owners is fatal to the validity of the notice. Knowlton v. Coye, supra. The certificate of the Register of Deeds also stated following the names of the record title owners set forth thereon 'No address'. However, the County Auditor took it upon himself to mail registered notices of the expiration of the period of redemption to them at Ray, North Dakota. The record does not disclose what, if any, investigation the County Auditor conducted to obtain those addresses. It is clear from the record that Ray, North Dakota was not the address of any of the record title owners at that time and all of the notices were returned to the County Auditor. The Auditor was not required by the statute to do this and efforts on his part to give further notice in a manner not prescribed by the statute in absence of showing that the owners were misled thereby was of no effect. Buman v. Sturn, 73 N.D. 561, 16 N.W.2d 837.
This Court has held on many occasions that a tax deed issued without strict compliance with the statutory requirements as to the service of the notice of the expiration of the period of redemption is void. Messer v. Henlein, 72 N.D. 63, 4 N.W.2d 587; Blakemore v. Cooper, 15 N.D. 5, 106 N.W. 566, 4 L.R.A.,N.S., 1074, 125 Am.St.Rep. 574; Davidson v. Kepner, 37 N.D. 198, 163 N.W. 831; Baird v. Zahl, 58 N.D. 388, 226 N.W. 549; Biberdorf v. Juhnke, 59 N.D. 1, 228 N.W. 233.
In Cruser v. Williams, 13 N.D. 284, 100 N.W. 721, this Court said:
'The redemption period does not terminate, or the certificate of sale mature, or title pass, until the statutory notice of the expiration of redemption has been given.'
It is thus clear that the issuance of a tax deed to Williams County of the property here in suit did not operate to...
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