Woolfolk v. Albrecht

• Decision Date: 22 June 1911
• Citation: 22 N.D. 36,133 N.W. 310
• Parties: WOOLFOLK v. ALBRECHT.
• Court: North Dakota Supreme Court

22 N.D. 36

133 N.W. 310

WOOLFOLK

v.ALBRECHT.

Supreme Court of North Dakota.

June 7, 1911.

On Petition for Rehearing, June 22, 1911.

Syllabus by the Court.

Following Power v. Kitching, 10 N. D. 254, 86 N. W. 737, 88 Am. St. Rep. 691,held, that chapter 158, Laws 1899, was constitutionally passed by the legislative assembly.

Whether the enrolled bill, when signed by the President of the Senate, the Speaker of the House, and approved by the Governor and filed in the office of the Secretary of State, is conclusive evidence of the due passage of the law, or whether the legislative journals are controlling, not decided for reasons stated in the opinion.

Conceding that the journal entries relating to the history of a bill may be considered and are controlling over the enrolled bill as authenticated by the President of the Senate and Speaker of the House and approved by the Governor, they are entitled to no probative weight, and the enrolled bill will be alone controlling where such journal entries are conflicting so that it is impossible to ascertain therefrom with certainty that the constitutional requirements were not complied with in the passage of such bill.

The presumption that the enrolled bill was constitutionally passed is very strong, and, even conceding that such presumption is rebuttable by reference to the journals, the evidence must be very strong and clear in order to overcome such presumption.

Applying such test to the journal entries relative to the passage of said chapter 158 of Laws 1899, held, that the enrolled bill is controlling.

Under Laws 1899, c. 158, title to real property in this state may be acquired by the adverse, open, exclusive, and undisputed possession thereof for a period of 10 years under claim of title and by paying all taxes assessed against the land for such period.

Held, that a certain deed executed and delivered by the county auditor to defendant describing the land and purporting for a consideration to transfer the same to defendant, although void upon its face, constitutes color of title sufficient upon which to base an adverse claim under said chapter.

Appeal from District Court, Morton County; W. C. Crawford, Judge.

Action by Eliza A. Woolfolk, for the use and benefit of John Bloodgood, against Sophie Albrecht. From a judgment for defendant, plaintiff appeals. Affirmed.

Ball, Watson, Young & Lawrence, for appellant. F. H. Register, J. E. Campbell, and W. H. Stutsman, for respondent.

FISK, J.

Action to determine adverse claims to certain real property in Morton county. The complaint is in the statutory form. The sole defense relied upon is that one John Henry Albrecht, deceased, former husband of defendant, acquired title to the real property in question under the provisions of chapter 158, Laws of 1899, by the continuous, open, notorious, and exclusive adverse possession thereof under claim and color of title and payment of taxes thereon for more than 10 consecutive years, to wit, from 1895 to the time of his death in 1907, and that defendant acquired title thereto as devisee under the will of her said husband and has at all times since continued to occupy and possess said real property, paying taxes thereon each year.

There are but two questions presented for determination: First, did John Henry Albrecht, during the 10 years he was in the actual adverse possession of this property, have title or color of title thereto within the meaning of the statute aforesaid? And, second, was chapter 158 aforesaid constitutionally passed?

If either of these propositions requires a negative answer, a reversal must follow; otherwise the judgment appealed from must be affirmed.

Respondent does not contend that the tax proceedings were valid; her contention being merely that her husband acquired from the county auditor an alleged conveyance of the premises in the form of a deed which it is contended was sufficient to vest in him color of title, which instrument is as follows, omitting the acknowledgment: “Absolute Property Deed. Know all men by these presents, that whereas John Foran, the then auditor of Morton county, state of North Dakota, in pursuance of the provisions of chapter 132, General Statutes of 1890, did offer for sale, prior notice having been given as required by law, on the 2d day of December, 1890, at the courthouse of Mandan, Morton county, North Dakota, duly and separately, all of the within described tract or parcel of real estate for the several sums so declared to be due thereon, and returned delinquent by the county treasurer of said county, for the nonpayment of taxes for the year prior 1889, theretofore duly levied on a valid assessment of said property for said year, amounting in the aggregate to the sum of $26.81 including interest and penalty thereon and the cost allowed by law, and no one bidding upon said offer an amount equal to that for which said tract, or parcel, was subject to be sold, the same was bid in for the state of North Dakota, and it appearing that three years or more have elapsed since the date of sale and said property never having been redeemed nor assigned by the state in accordance with the provisions of section 86, chapter 132, Laws 1890, this property is now the absolute property of the state of North Dakota; and whereas, in accordance with section 10, chapter 100, Laws 1891, taxes for subsequent years have been levied upon each tract, or parcel, severally based upon due assessments thereof, amounting in the aggregate to the sum of $327.26, making the total amount due the state in taxes, penalties, interestand costs, up to the present date, upon all of said tract or parcel, in the aggregate the sum of $354.07, and whereas the state auditor of said state has, in accordance with section 86, chapter 132, Laws 1890, directed the county auditor of said county to sell and dispose of said real estate at private sale: Now therefore, I, A. V. Schallern, auditor of said county of Morton, in consideration of the premises and the sum of $354.07, paid to the treasurer of said county on the 31st day of May, 1895, and by virtue of the statutes in such case made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto John Henry Albrecht, his heirs and assigns, the following described piece or parcel of land, situate in said county and state, to wit, all of section 19, township 138 north of range 82 west 5th p. m., containing 640 acres, more or less, in Morton county, North Dakota. To have and to hold unto him the said John Henry Albrecht, his heirs and assigns forever. In witness whereof, I, A. V. Schallern, county auditor, as aforesaid, by virtue of the authority aforesaid, have hereunto subscribed my name and affixed my seal this 17th day of July, A. D. 1895. A. V. Schallern, Auditor Morton County.”

The record discloses that such purported conveyance was duly filed for record in the office of the register of deeds of said county on July 18, 1895. Such purported conveyance was no doubt executed and delivered pursuant to sections 86 and 87 of chapter 132, Laws of 1890. These sections are as follows:

“86. Sale of Property Bid in for the State. All pieces or parcels of real property bid in for the state under the provisions of this act, and not redeemed or assigned within three years from the date of sale shall become the absolute property of the state, and may be disposed of by the county auditor at public or private sale, as the state auditor may direct, subject to such rules and restrictions as he may prescribe. * * *

87. Deed to be Given on Sale of Forfeited Property. Upon the sale of any tract or lot of forfeited real property the county auditor shall execute to the purchaser thereof a deed in fee simple of the property so purchased, which shall pass to such purchaser absolute title to the property therein described, without any other act or deed whatever. * * * Such deed may be recorded as other deeds of real estate, and the record thereof shall have the same force and effect in all respects as the record of such deeds, and shall be evidence in like manner. Laws 1890, p. 376, c. 132, sections 86, 87.”

[5] It will be noticed that the statute aforesaid does not prescribe the form of the deed therein mentioned, and we think it entirely clear that, if the state had acquired title through the tax proceedings, such deed would have been sufficient to have transferred such title to the grantee therein named. It is, we think, equally clear under the rule announced in Power v. Kitching, 10 N. D. 254, 86 N. W. 737, 88 Am. St. Rep. 691, that such purported deed operated to confer color of title upon the grantee therein named. Appellant's attempt to differentiate on principle the case at bar from Power v. Kitching is, we think, without force. Such contention is based upon the unwarranted assumption of counsel that there was no statutory authority authorizing such a conveyance to be made. The fallacy of such argument lies in the erroneous conclusion that the only authority for the execution of a deed is that contained in section 7, chapter 100, Laws of 1891. The deeds prescribed by said section merely relate to conveyances in cases where the property was bid in at the tax sale by a person other than the state, or where the state has bid in the property and assigned the certificate of sale to another. In the case at bar the state bid in the property, but did not assign the certificate before it ripened into title by operation of law through lapse of time as provided in section 86, chapter 132, Laws of 1890, aforesaid. Had the tax proceedings been regular in all respects, the state would have become the absolute owner of this property at the expiration of three years upon compliance with other requirements of law regarding notice of expiration of time for redemption. Darling & Angell v. Purcell, 13 N. D. 288, 100 N. W. 726. The only authority prescribed for transferring such title to another is that...