Wright v. Jones

• Decision Date: 18 April 1912
• Parties: WRIGHT v. JONES et al.
• Court: North Dakota Supreme Court

23 N.D. 191

135 N.W. 1120

WRIGHT

v.JONES et al.

Supreme Court of North Dakota.

April 18, 1912.

Syllabus by the Court.

The case of Power v. Bowdle, 3 N. D. 107, 54 N. W. 404, 21 L. R. A. 328, 44 Am. St. Rep. 511, having been followed for 21 years by this court, has established a rule of property in this state. Following said case, it is held, that a description in the assessment roll as follows:

+-----------------------------------------+
                ¦Name       ¦       ¦Sec.¦Twp.¦Range¦Acres¦
                +-----------+-------+----+----+-----+-----¦
                ¦Margaret J.¦       ¦    ¦    ¦     ¦     ¦
                +-----------+-------+----+----+-----+-----¦
                ¦McGibbney  ¦N.W.4  ¦35  ¦149 ¦56   ¦160  ¦
                +-----------------------------------------+
                

cannot support a tax levy, and a tax deed based thereon is void.

Defendants claim title under section 4928, R. C. 1905; it being their contention that they have been in open, adverse, and undisputed possession of the land under color of title for more than 10 years, paying all taxes thereon during said time. Evidence examined and found not to support said claim.

Plaintiff received one-third interest in the land by grant from the government, and is entitled to have his title thereto quieted; but the remaining two-thirds interest he claims by inheritance from his father, whom he asserts is dead. Having no positive proof of such death, he relies upon the presumption arising from the unexplained absence of his father for seven years under section 7302, R. C. 1905. An examination of the evidence, however, shows that this presumption did not arise. Such presumption only arises upon an unexplained absence from his last-known home. Evidence herein not sufficient to show facts upon which to base this presumption.

The evidence regarding an accounting examined, and found to fully sustain the finding of the trial court, and is adopted by this court.

Appeal from District Court, Grand Forks County; Templeton, Judge.

Action by Arthur W. Wright against Frances C. Jones and others. From a judgment for defendants, plaintiff appeals. Affirmed.Scott Rex, of Grand Forks, for appellant. Bangs & Robbins, of Grand Forks, for respondents.

BURKE, J.

About the year 1882 one Margaret J. McGibbney, then unmarried made homestead entry for a quarter section of land in Grand Forks county, N. D., and took up her residence thereon. Shortly thereafter she married one John Wright, by whom she bore two sons, Arthur W., plaintiff herein, and a younger son, whose first name we do not know. Arthur was born in 1884, and the younger son in February, 1887, at which time the mother died. The infant child was given away by its father to a mother who had lost her own child, a stranger to him, and so far as we can learn this child has never been heard of since. The husband continued to reside upon his dead wife's homestead, and two years thereafter a patent was issued to the heirs of Margaret J. McGibbney, deceased. After a short time Wright placed the son Arthur with the family of the defendants, the Joneses, neighbors of his family. Wright was to pay $6 per month in cash and furnish the material for the boy's clothes. While this arrangement was in effect, and in the fall of the year 1890, Wright suddenly disappeared from that neighborhood, leaving many debts. He did not notify the defendants, or any one, of his intended departure. The defendants continued to care for the boy Arthur, and finally legally adopted him as their own son, about the year 1898.

The elder Wright was soon heard from at Fairhaven, Washington state, where he had gone apparently in quest of a widow who had removed from the Dakota neighborhood to the Pacific coast. Whatever induced his change of residence, he never returned to Dakota, but continued to reside upon the coast. His Dakota creditors took what little property was left by him, excepting his interest in the homestead of his late wife; this land belonging to the father and the two sons in undivided one-thirds, under the grant from the government, but not in any manner inherited from Mrs. Wright. However, the said land was soon sold for taxes, and a tax deed issued to one Lindwell, a banker in a nearby town. This tax deed caused some talk in the neighborhood, and some of those interested decided to have a guardian appointed for the boy who would redeem from the tax sale and keep the land for the boy. One Christian was proposed as guardian, but he consulted the Joneses before he would consent to act, and shortly thereafter the Joneses adopted the boy, and Mrs. Jones obtained a quitclaim deed from Lindwell for which she paid $126.54, the exact amount due to Lindwell for taxes upon the land. Three years later, when the boy Arthur was 17 years of age, he ran away and did not return until he had reached his majority and came back to claim the land.

[1] 1. The first question arising is the validity of the title which the Joneses now assert to the land. They claim under the tax deed to Lindwell, his quitclaim deed to Mrs. Jones, and ten years' adverse possession. We will examine the tax deed first. It is based upon the taxes for the year 1889, and the assessment roll shows that the land was listed as follows:

+-----------------------------------------+
                ¦           ¦       ¦Sec.¦Twp.¦Range¦Acres¦
                +-----------+-------+----+----+-----+-----¦
                ¦Margaret J.¦       ¦    ¦    ¦     ¦     ¦
                +-----------+-------+----+----+-----+-----¦
                ¦McGibbney  ¦N.W.4  ¦35  ¦149 ¦56   ¦160  ¦
                +-----------------------------------------+
                

An examination of the sixth line of Exhibit A at page 113 of the case of Power v. Bowdle, 3 N. D. 107, 54 N. W. 404, 21 L. R. A. 328, 44 Am. St. Rep. 511, will show that the description in said case is almost exactly like this one, and such case will be controlling here, unless overruled. We are now asked to overrule the earlier case. We are well aware of the severe criticism accorded the Power-Bowdle Case; but we feel that after 21 years it would be a mistake to change the rule which has long since become a rule of property in this state. This court has followed the said case too often to repudiate it now. See Iowa & Dakota Land Co. v. Barnes Co., 6 N. D. 601, 72 N. W. 1019;Betts v. Signor, 7 N. D. 399, 75 N. W. 781;State Finance Co. v. Trimble, 16 N. D. 199, 112 N. W. 984;State Finance Co. v. Mulberger, 16 N. D. 214, 112 N. W. 986, 125 Am. St. Rep. 650;State Finance Co. v. Beck, 15 N. D. 374, 109 N. W. 357;Nind v. Meyers, 15 N. D. 400, 109 N. W. 335, 8 L. R. A. (N. S.) 157;Beggs v. Paine, 15 N. D. 436, 109 N. W. 322. In the last-mentioned case this court announced that it would not extend the rule but say: “Those decisions have established a rule of property in this state from which we cannot now depart.” That, being true then, is even more effective now. We must hold the tax deed absolutely void.

[2] 2. It therefore follows that neither Lindwell nor his grantee has any interest in the land unless acquired under section 4928, R. C. 1905, designated by appellant as the short statute of limitations. This section has been construed by this court several times. Streeter v. Fredrickson, 11 N. D. 300, 91 N. W. 692;Power v. Kitching, 10 N. D. 254, 86 N. W. 737, 88 Am. St. Rep. 691;Stiles v. Granger, 17 N. D. 502, 117 N. W. 777. Under these decisions, these defendants, to recover, must show that for the full period of 10 years they were in the open, adverse, and undisputed actual possession of the land under color of title and had paid thereon all taxes and assessments. In this order of proof it will be necessary to consider whether the Jones took the land from Lindwell, “openly adverse” to Arthur Wright, and whether for a period of 10 years such possession was undisputed by Arthur. We will preface our answer to the said questions with some of the testimony from the record. Walter Christian was the neighbor mentioned by the neighbors as a guardian for the boy. We quote from his testimony. “Q. For what purpose were you to be appointed? A. Why, it was for Arthur. Q. And was this question of this land discussed in that connection? A. Yes, sir. Q. And what about it? A. I believe it had been sold for taxes then, and it was to see to the boy and to the property. * * * It was to get the taxes cleared up and keep it clear for the boy. Q. * * * Just what conversation did you have with the Joneses on this subject? * * * A. I told them that the neighbors were going to have a guardian appointed, and that they wanted me appointed, but I wouldn't accept unless they were willing, and he said, if any one was going to be appointed, he would just as soon have me as any one else, and Mrs. Jones said the same, and then they called Arthur and he agreed to it.” When Mrs. Jones was on the stand to explain the matter, she said: “After a number of years, we found that this quarter of land that was his mother's had been sold for taxes. * * * It came into my mind that perhaps I might in some way raise the money to pay the taxes, on this place, and we could keep it to help support the boy and to pay us back a little bit. * * * So I went to Mr. Lindwell and asked him if he would turn the land over to me, and he did.” Again she was asked: “Q. Did you ever agree with him (Arthur) to deed the land to him or convey it to him, or anything of that kind? A. I may have said that if he was a good, good boy until he was 21 years, and helped us to get along so we would have a home of our own, that we would turn the quarter over to him. Q. Did you ever say anything to him that you had acquired this title for his benefit? A. Nothing more than that we might keep him and support him instead of sending him away.” Again she says: “Q. Now, did you ever say to him absolutely or otherwise that if he was a good boy when he became of age you might give him the land? A. I presume likely that I did.” And again: “Q. Well, he had given you to understand, when he came back after he was of age, that he claimed the land? A. Yes. Q. And you gave him to understand at that time...