164 N.W. 320 | N.D. | 1917
Lead Opinion
This is an appeal by tbe defendants from tbe judgment of tbe district court of Grand Forks county, quieting title in plaintiffs to certain lands as against certain alleged taxes levied and assessed against said land. Tbe complaint is in tbe usual statutory form set out in § 8147, Comp. Laws 1913; and tbe defendants, in their answer, set up tbe levy and assessment of these taxes. Tbe plaintiffs Nash Brothers, a corporation, and Swift & Company, a corporation, leased from tbe Great Northern Railway Company, a corporation, certain real property, to be used for nonrailway purposes, and it appears that this real property so leased was a part of tbe right of way of tbe Great Northern Railway Company. That tbe interests of tbe Nash Brothers, a corporation, and of Swift & Company, a corporation, are taxable in addition to tbe taxes paid by tbe Great Northern Railway Company on its right of way has been settled by this court in tbe case of Northern P. R. Co. v. Morton County, 32 N. D. 627, L.R.A.1916E, 404, 156 N. W. 226. Tbe question raised bere, however, is the validity of tbe taxes levied and assessed, it being tbe contention of tbe plaintiffs that tbe taxes are void because of tbe insufficiency of tbe description of tbe real estate. Tbe assessment record, in describing the real property to be assessed, sets out tbe description as follows:
Name of owner Year of Description Lease Leased site on the Lot Block
Occupied by-G. N. right of way,
Nash Brothers 1913 Grand Dorks City
Original town northeast 100 ft. 7 28
1912 “ “ “ “ «
We hold the assessment to be void, because of the insufficiency of the description. There is nothing in the description of “the northeast 100 feet of lot 7, block 28” or.“3,800 square feet opposite block 27” to mark out the real property intended to be assessed. The northeast 100 feet may be a square 10 feet by 10 feet in the northeast corner, or it may be a portion of the northeast corner of the lots 100 feet in width or in depth. The same way with the expression 3,800 square feet. That might be a portion 60 feet by approximately 64 feet, or it might be 40 by 95 feet or in any other form. This court has already held in the case of Grand Forks County v. Frederick, 16 N. D. 118, 125 Am. St. Rep. 621, 112 N. W. 839, that a description of real property in lot 2 as “N. 23 x 200 ft. deep” was “void for indefiniteness, although the owner of the lot is correctly named in the assessment roll.” In that case the court said: “No point is given as the starting point for the dimensions 23 by 200 feet.” This court has held from time to time that land is not assessed unless described with sufficient accuracy for identification. It is not enough that the owner’s name be given correctly, or even that he may not be misled by the description. He may know that his land is intended to be assessed; yet, this does not relieve the authorities from proceeding regularly in assessment matters. See Wells County v. McHenry, 7 N. D. 246, 74 N. W. 241; Sheets v. Paine, 10 N. D. 103, 86 N. W. 117, and numerous other decisions of this court.
The defendants claim that even though, there may be an irregularity or defect or illegality in assessing, laying, or levying such tax, the courts have the power, under § 2201 of Comp. Laws 1913, to amend and correct the irregularities or defects. As shown in the case of Grand Forks County v. Frederick, supra, this section does not apply to void assessments, by reason of failure to describe the land definitely. We have had occasion already to show that this section does not apply to assessment void on other grounds (Northwestern Improv. Co. v.
Defendants claim that the plaintiffs cannot be heard in this case, because these lease interests are assessable, have not paid taxes, and that no taxes are tendered. As we have held in the case of Northwestern Improv. Co. v. Oliver County, supra, no tender need be made in such case as this. This is a statutory action to determine adverse claims. There are no taxes to tender, for the assessment is void, and the nature of this action does not require a tender to be made. If the taxpayer were asking for equitable relief because of some irregularity in the tax proceedings, it would present a different situation. The judgment of the lower court is affirmed.
Concurrence Opinion
(concurring). This is an action to determine adverse claims to real property. The complaint avers and shows that the plaintiffs have some title or interest in certain property in the city of Grand Forks, to wit, a part of lot 7 in block 28, and a part of lots 9 and 11 in block 28, which parts are described by metes and bounds. It avers that the defendant claims some estate or interest in said property adverse to the plaintiffs.
The answer is in effect that, for several specified years, the property was duly listed and assessed for taxation, and taxes were duly levied against it, and for such taxes the property was duly sold to Grand Forks county.
The county appeals from a judgment holding void the assessment, the taxes, and the tax sale on the ground that the land description is fatally defective. In the assessment book for each year the description of
There is a first and second description of each tract, and each -description is in a different assessment book. All of lots 7, 9, and 11 are a part of the Great Northern right of way. Only a part of each lot is leased, and the part not leased is not subject to taxation. As the leased property consists of only a fractional part of each lot, it was not possible to describe it by giving the number of the lot, and the other descriptions are too vague. They describe nothing.
It is established by the decisions of this court from its organization that, before there can be any valid tax against land, there must be a description sufficiently accurate and definite to enable the owner and others to identify it. The description as given in the assessment roll is to be used in all subsequent proceedings. There is no provision for changing the description in order to correct it or make it more certain, and extrinsic evidence is not admissible to show what is meant by the description. A sufficient description is necessary, not alone for the benefit of the owner. It becomes the basis of all further proceedings and future titles. Grand Forks County v. Frederick, 16 N. D. 123, 125 Am. St. Rep. 621, 112 N. W. 839. Land is not assessed unless it is described with sufficient accuracy for complete identification. The reasoning of Judge Cooley and the authorities cited by him are absolutely conclusive, and show that there was no reason for taking this appeal.
In a statutory action like this it is sheer folly for counsel to talk about rules of equity. It is a case of strict law, and not of equity. The statute gives the right of action and the form of the complaint. It avers that defendant claims some title or interest in the land adverse to the plaintiff, and challenges the defendant to set forth and establish his title or to abandon it. The defendant becomes the plaintiff and tenders the issue, and- of course the other party must have a right to defend against the claim of title, when the answer and evidence shows that a claim is based on a void assessment, tax sale, or tax deed, then it must be adjudged void as a matter of law, and there is no equity or
Judgment affirmed.
Concurrence Opinion
(concurring specially). I concur in the opinion prepared by Judge Burr, solely for the reason that the questions involved are controlled by the former decisions of this court. It seems to me, however, the rule announced ought to be changed by legislative exactment.
