106 N.W. 566 | N.D. | 1905
The plaintiff brought this action under chapter 5, page 9, Laws 1901, to determine adverse claims to the north 50 feet of lot 6, in block 37, Keeney & Devitt’s second addition to the city of Fargo. The plaintiff’s interest therein was acquired through purchase at three separate tax sales, to wit, .the sales for the 1890, 1892, and 1893 taxes, and upon which tax deeds were issued in 1902. The sales were made to Louis A. Kedney, and tax sale certificates issued to him. The deeds were issued to “Robert B. Blakemore, executor, and Laura B. Kedney, executrix.” The complaint alleges that Louis A. Kedney died in 1898; that in his
The preliminary question urged by counsel for defendants in his brief, that the defendants were entitled to a trial by jury, does not merit or require discussion. This contention is inconsistent with their attitude upon the record which they have prepared and presented to this court. Thej have demanded a trial anew under section 5630, Rev. Codes 1899. This section does not authorize retrials in jury cases. In demanding a retrial they necessarily as
It is also contended that the introduction of the certificates and deeds did not make out a prima facie case. This contention is likewise untenable. It is true that “in the absence of an enabling statute, it is incumbent upon any person who claims title to land derived from a sale thereof for taxes to prove affirmatively and by proper evidence that every mandatory provision of the law under which the sale was effected was strictly complied with; that each step in the proceedings from the assessment of the taxes to the execution of the deed was formally and regularly taken by
The deeds, however, were not issued until 1902. The revenue law under which the sales were made was expressly repealed in 1895, and it is contended that the assurances made to purchasers by the former statute as to the evidential force of certificates and deeds, is, therefore, not available. This contention was urged in Fisher v. Betts, 12 N. D. 197, 207, 96 N. W. 132, and was overruled. It was contended in that case that because of the repeal of the revenue laws of 1890 and 1891 in 1895, a tax deed issued thereafter had no force as evidence that the tax proceedings were regular, and that the regularity of all acts of all of the taxing officers must be affirmatively estáblished. It was claimed that the repeal in this respect related solely to the remedy, and that the legislature has a right to change existing remedies. We denied that the repeal had the effect contended for, in the following language: “The contention would not be disputed if the change referred to
Counsel for defendants vigorously challenges the soundness of the above decision, contending that the statute stated a mere rule of evidence, relating to the remedy, and that remedies are always under legislative control. It has been held in a number of cases that “rules of evidence are at all times subiect to modification and control by the legislature, and changes thus made may be made applicable to existing causes of action,” and that the repeal of a statute under which purchasers at tax sales have been made effectually deprives the purchaser of the assurances contained in it as to the evidential effect of the deed. The following cases so hold: Hickox v. Tallman (N. Y.) 38 Barb. 608; Howard v. Moot, 64 N. Y. 262; Roby v. City of Chicago, 64 Ill. 447; Gage v. Caraher (Ill.) 17 N. E. 777; Gibbs v. Gale, 7 Md. 76; Strode v. Washer (Or.) 16 Pac. 926; Marx v. Hanthorn (C. C.) 30 Fed. 579, 587. We have no quarrel with the rule, and it is a general rule, that the legislature may control remedies, but the rule is subject to the exception, which is as firmly fixed as the rule itself, that the legislature cannot, by a repeal or change of remedies, impair the obligation of a contract. The protection against the impairment of the obligation is absolute, and all legislative acts which work that result, whether by directly changing its terms or indirectly by rendering it ineffective, and of less value through a change of remedies, are prohibited. This is well stated in 2 Btory on the Constitution (5th Ed.) section 1385: “It is perfectly clear that any law which enlarges, abridges, or in any manner changes the intention of the
The views of the Supreme Court of the United States upon this question are clearly set forth in the language of Mr. Justice Swayne, in Edwards v. Kearzey, 96 U. S. 595, 24 L. Ed. 793: “The constitution of the United States declares that: ‘No state shall pass any * * * law impairing the obligation of contracts.’ A contract is the agreement of minds, upon a sufficient consideration, that something specified shall be done, or shall not be done. The lexical definition of ‘impair’ is ‘to make worse; to diminish in quantity, value, excellence or strength; to lessen in power; to weaken; to enfeeble; to deteriorate.’ Webster, Die. ‘Obligation’ is defined to be ‘the act of obliging or binding; that which obligates; the binding power of a vow, promise, oath, or contract,’ etc. Webster, Die. * * * The obligation of a contract includes everything within its obligatory scope. Among these elements nothing is more important than the means of enforcement. This is the breath of its vital existence. Without it, the contract, as such, in the view of the law, ceases to be, and falls into the class of those ‘imperfect obligations,’ as they are termed, which depend for their fulfillment upon the will and conscience of those upon whom they rest. The ideas of right and remedy are inseparable. ‘Want of right and want of remedy are the same thing.’ * * * It is also the settled doctrine oí this court that the laws which subsist at the time and place of making a contract enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This rule embraces alike those which affect its validity, construction, discharge and enforcement. Van Hoffman v. Quincy, 4 Wall. 535, 18 L. Ed. 403; McCracken v. Hayward, 2 How. 608, 11 L. Ed. 397. In Green v. Biddle, 8 Wheat. 1, 5 L. Ed. 547, this court said, touching the point under consideration: ‘It is no answer that the acts of Kentucky now in question are regulations of the remedy, and not of the right to the lands. If these acts so change the nature and extent of existing remedies as materially to impair the rights and interests of - the owner, they are just as much a violation of the compact as if they overturned his rights
Again, in United States v. Quincy, 71 U. S. 535, 18 L. Ed. 408, Mr. Justice Swayme, speaking for the court, said: “It is also set-'led that the laws which subsist at the time and place of the making of a contract, * * * enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This principle embraces alike those which affect its validity, construction, discharge and enforcement. * * * It is competent for the states to change the form of remedy, or to modify it otherwise as they may'- see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances. AYhenever the result last mentioned is produced, the act is within the prohibition of the constitution, and to that extent void.”
The question then is, not whether the repeal related to the remedy, but whether it impaired the obligation of the purchaser’s contract with the state, by making it less effective and less-valuable. In Fisher v. Betts, supra, we hold that it did, and we are still of the same opinion. The state was one of the contracting parties. It promised to those who would purchase the lands of tax debtors at its sales that it would give to them deeds which would be prima facie evidence of their title. Under this assurance the purchasers parted with their money. If the proceedings were in
The necessity which gave rise to statutes like this is well stated in Black on Tax Titles, at section MS, in the following language: “The application of the common-law rule, casting the burden of proving every step upon the claimant under a tax title, was found to operate very much to the disadvantage of purchasers at tax sales. Aside from the difficulty of the undertaking — to prove every item in a long and technical course of proceedings — it was an arduous task to collect and preserve all the necessary fragments of evidence. Many of these were of a perishable nature, subsisting cnly in the files of newspapers, or fugitive documents; and the lapse of a considerable number of years, from the time of the first assessment, frequently put it beyond the power of the purchaser to fortify his claim with the evidence that was required of him. This fact, taken in conjunction with the strict and minute compliance with the statutory directions that was demanded of all the officers concerned, and with the extreme probability that some flaw, some slight omission or irregularity, could be detected in the proceedings, tended to make tax sales entirely nugatory. It became proverbial that a tax title was no title at all. And, indeed, transactions of this character came as near being an outright mockery as was possible for anything having the sanction of the law.”
In our opinion the statute in question entered into, and was a substantial part of, contracts of purchase. It was framed to be relied upon by purchasers. To permit the state to repeal it would be to impair its obligation to the purchaser. This it cannot do. In our opinion it is within the mischief which the constitution was intended to prohibit. We must decline, therefore, to follow those courts which have sustained such repeals upon the ground
The invalidity of the deeds is established by proof that no sufficient notice of the expiration of the redemption period was given. The property in question is the “north 50 feet of Lot 6, in Block 37, in Keeney & Devitt’s Second Addition to Fargo.” One of the notices described it as “Lot 6, Block 37, Keeney & Devitt’s Second Addition to Fargo” (failing to describe the part of the lot). Another described it as the “north 50 feet of Lot 6, Block 37, Keeney & Devitt’s Addition to Fargo” (instead of “Second Addition to Fargo”). The third notice did not describe the part of the lot or correctly describe the addition in which the property is situated. The notices were clearly insufficient because of their failure to-correctly describe the property. The three notices referred to are set out in full in the abstract which is presented as a basis for our decision. True, they are notices which were personally served upon the defendant. They are, however, notices prepared under the hand and seal of the county auditor, and we cannot disregard them and assume, for the purpose of sustaining the tax deeds, that the county auditor prepared and served, either personally or by publication, other notices which were sufficient.
Counsel for plaintiff contend finally that no notice was necessary, and that the validity of the deeds is therefore not affected by the insufficiency of the notices. This presents a question of some difficulty. The sales were made under chapter 132, page 376, Laws 1890. All sales under that act were subject to redemption. The purchaser’s lien could ripen into title only after service of notice of the expiration of the redemption period, and the owner’s title could not be divested or his right of redemption terminated until the statutory notice was given. The purchaser could, by a timely service of the notice, limit the right of redemption to three years. Ij>y failing to serve it the period was extended and the right preserved until sixty days after such notice was given. Chapter 132, page 376, Laws 1890, was expressly repealed by section 12 of repeals, Rev. Codes 1895, which took effect on January 1, 1896. Section 1264 of the revenue laws contained in the Revised Codes
We do not find it necessary to express an opinion upon these conflicting views at this time, for we are of opinion that the legislature, in enacting the Revised Codes of 1895, saved the right ot redemption as it existed under chapter 132, page 376, Laws 1890. The effect of the repeal by the Code of 1895 must be considered in connection with the general saving provisions contained in section 2686 of that Code, which read as follows: “No action or proceeding commenced before this Code takes effect, and no right accrued, is affected by its provisions, but the proceedings therein must conform to the requirements of this Code so far as they are applicable.” This section preserves “actions” which had been commenced; “proceedings” which had been commenced; and “rights” which had accrued when the Revised Codes of 1895 took effect. The proceedings were thereafter required to conform to the provisions of the 1895 Code “so far as its provisions are applicable.” We are agreed that the right of redemption, as it existed under chapter 132, page 376, Laws 1890, was a “right accrued,” and was preserved by the above section. The saving provisions contained in this section, while general in terms, are such as usually accompany a revision of revenue laws. 1 Cooley on Taxation (3d Ed.) 499, 500, 501, and cases cited. And they are generally held to perpetuate pre-existing laws so far as they are necessary to protect and enforce the right of the tax debtor as well as the purchaser. For cases in point, see Fletcher v. Post, 104 Mich. 424, 62 N. W. 574; Matter of Munn, 165 N. Y. 149, 59 N. E. 881; also Greensboro v. McAdoo, 112 N. C. 359, 369, 17 S. E. 178; City v. Cronley, 122 N. C. 388, 30 S. E. 9; Puget Sound Bank v. County (C. C.) 62 Fed. 546; City v. Morris (Ind. App.) 58 N. E. 510.
In the recent case of Hagler v. Kelly, 13 N. D. 218, 13 N. W. 629, my associates were of opinion that the lien of a tax judgment
This rule of construction ■ is expressly made applicable to the Revised Codes of 1895. Section 2681 of that Code reads as follows: “No part of this Code is retroactive unless expressly so declared.” There is nothing in section 1264 of that 1895 Code which will authorize us to hold that it relates to redemptions under former sales. It clearly relates to redemptions from sales made under the 1895 revenue law, of which it is a part. The same rule of construction also requires us to hold that section 106, chapter 126, page 295, Laws 1897 (section 1289, Rev. Codes 1899), and chapter 166, page 221, Laws 1901, are prospective, and do not apply to certificates issued under previous statutes. The statutes in force when the sales here in question were made, relating to redemption, required notice of expiration as a condition to obtaining a deed. No such notice has been given. The deeds are therefore invalid.
The defendants also attack the validity of the tax sales: First, upon the ground that the owner or manager of the newspaper in which the notices were published failed to file the affidavit with
It is also claimed that the notices of sale did not contain a sufficient description of the property, and were therefore void. No proof of any kind was offered as to the notice of sale for 1894, and as to the other years the evidence does not show that the notices were insufficient. The notices of sale for the years 1891 and 1892 were published in the Fargo Republican. Defendants’ counsel took the stand in their behalf and offered in evidence, over objection, two printed slips of paper, which he testified were cut from newspapers in his possession purporting to have been published on November 1, 1891, and November 1, 1893, respectively. These clippings contain only a small part of the tax sale notices. The descriptions are not as intelligible as they would be if the entire notice had been offered in evidence, and it is very doubtful whether a sufficient foundation was laid for the introduction of this evidence ; a question we need not decide, for we are agreed that the description contained in each of the papers offered is sufficient. In each,
It follows that the attack upon the sales must fail, and the certificates must be held valid. The district court is directed to modify its judgment to correspond with the conclusions herein ’ set out. Appellants will recover their costs on this appeal.