1 N.D. 309 | N.D. | 1890
This action was orginally commenced by Jacob S. Eshelman. Pending the action Eshelman died, and his administrator assigned the claim on which the suit was brought to the plaintiff, William Budge, who was substituted as plaintiff by order of the court, and filed an amended complaint alleging, in substance, that the defendant is a municipal corporation. That in 1883 the defendant caused Kitson avenue, in said city to be filled in and graded. That the mayor and council of said city, by ordinance duly passed, attempted to levy a special tax to pay for said filling and grading upon the property abutting upon said avenue. That subsequently thereto, the said special tax not having been paid, and about March 13,1884, the said mayor and council, under an ordinance duly passed, caused the real estate upon which said special tax was levied to be sold to pay the same, and that upon such sale all of said property was purchased by one Jacob S. Eshelman; and the defendant city, through its treasurer, and in pursuance of an ordinance duly passed, caused eighteen certificates of sale to be issued to said Eshelman, in each of which it was stated that the property therein described had been sold for a delinquent special tax,
It is alleged in the complaint that the tax certificates issued by the city to appellant’s assignor were absolutely void for certain specified reasons. The supreme court of Dakota territory held those reasons sufficient. ¡See McLauren v. City of Grand Forks, 43 N. W. Rep. 710. The charter of the city of Grand Forks authorized the city to fill and grade its streets, and assess the expense thereof upon abutting property, and to sell such
Considerations of this character led the supreme court of Wisconsin, at an early date, to hold squarely that money paid at tax-sale for void tax certificates could be recovered back in an action for money had and received. Norton v. Supervisors,
It will be noticed that, under the distinction in Norton v. Supervisors, supra, the case of Chapman v. City of Brooklyn presents the exact conditions for the application of the rule of caveat emptor. The court, however, did not apply the rule, but adverted to the broad equity principle already stated, and said that under those principles it had been repeatedly held that taxes illegally imposed and collected might be recovered back. Now, if judicial decisions can determine anything, it is well settled that illegal taxes voluntarily paid can never be recovered
On the other hand, the cases that have denied a recovery are very numerous. Cooley on Taxation, 475, thus states the law: “A tax-sale is the culmination of proceedings which are matters of record, and it is a reasonable presumption of law that, where one acquires rights which depend upon matters of record, he first makes search of the record in order to ascertain whether anything shown thereby would diminish the value of such rights, or tend in any contingency to defeat them. A tax purchaser, consequently, cannot be in any technical sense a bona
The principles laid down by these text-writers are fully sustained by the following authorities: Lynde v. Melrose, supra; Casselbury v. Piscataway Tp., supra; Phillips v. Jefferson Co., 5 Kan. 412; Commissioners v. Walker, 8 Kan. 431; Sapp v. Commissioners, 20 Kan. 243; County of Lyon v. Goddard, 22 Kan. 389; Sullivan v. Davis, 29 Kan. 28; Rice v. Auditor General, 30 Mich. 12; Hamilton v. Valiant, 30 Md. 139; Jenks v. Wright, 61 Pa. St. 410; Packard v. New Limerick, 34 Me. 266; Wilmerton v. Phillips, 103 Ill. 78; Loomis v. County of Los Angeles, 59 Cal. 456; City of Logansport v. Humphrey, 84 Ind.
In this connection we must notice another point. The tax-sale certificates issued to appelant’s assignor recite that the purchaser will be entitled to a deed on and after a specified date, in case no redemption is made. Counsel insist that such recital is equivalent to a covenant for a deed, which cannot now be given because the city has been perpetually enjoined from issuing deeds on such certificates. But we do not think the recital constitutes a covenant in any proper sense. It is simply a recital of a provision of the law, and its presence in the certificate adds nothing to the force of the law, or to the liability of the municipality. Even if held to be a covenant we could not give it effect. The tax collector’s powers are such only as are given by statute. He cannot bind the municipality which he represents to any liability not authorized by law, and he is without authority to make such covenant. It is true that a collector’s promise to refund in case the tax-sale proved illegal was enforced in Brevoort v. City of Brooklyn, supra, but in Hyde v. Supervisors, 43 Wis. 129, the court held a similar agreement made by the board of supervisors at the time of the tax-sale, and the further agreement, to secure to such purchaser a perfect title to the lands described in the tax-sale certificates to be in excess of any authority conferred upon the board and not binding upon the county. Certainly this is the better doctrine.
A distinction is sought to be made between cases where the defendant municipality receives the proceeds of the tax-sale solely to its own use and benefit, and where it receives such proceeds in part as the collecting agent for other municipalities, and it is said that while a recovery might not be just in the latter cases, it should certainly be enforced in the former, and we are cited to the New York cases as making such distinction. No such distinction is affirmatively announced in those decisions. We doubt if any such were in the mind of the New York court. But if such distinction is made, it arrises from the fact that the court refuse to apply the rule of caveat emptor in Chapman v. City of Brooklyn, and, as we hold that such rule applies in this case, we cannot adopt such distinction.
But one more point is made in the case. In 1889 the legislature of Dakota passed an act entitled “An act providing for the reassessment of abutting property for the improvement of public streets.” See chapter 31, Laws 1889. The statute provides that when any city “has heretofore, upon a petition of a majority of the abutting property owners upon any street, made a special assessment for grading or paving the same and assessed the abutting property uniformly, and in the same amount per front foot, and proceeded to pave or grade the street in accordance with the petition, and it shall appear that the ordinance or other proceedings in making the assessment were for any reason in-, valid, the city council is hereby authorized and empowered to reassess all the real property abutting upon such improvement upon which the special assessment for the same has not been paid, upon the front-foot plan, in such sum as may be sufficient to pay its just proportion of the cost of such improvement;” and the following sections point out .the method of reassessing and collecting such tax. It is claimed that this statute, in effect, au