96 N.W. 294 | N.D. | 1903
This is an action to quiet title to 160 acres of land situated in Cass county. The plaintiff alleges that he has a lien thereon, consisting of a mortgage, upon which a judgment of foreclosure has been entered; that the defendants claim certain •estates or interests in or liens or incumbrances upon the same adverse to the plaintiff; and prays that they may be required to set forth their claims, to the end that their validity and priority may be determined, and that title may be quieted in the plaintiff. L. R. Freeman, R. E. Fleming, the Richards Trust Company, and Cass county were made defendants. The three defendants first named :made default. Cass county served notice of appearance, but did not answer within the statutory period. Judgment was entered by default quieting title in the plaintiff as against the three defendants ; first named, and also declaring that the defendant Cass county had no interest in or lien upon the premises for taxes assessed and levied for the years 1900 and 1901. Thereafter, the state’s attorney of ‘Cass county, upon his affidavit, procured an order to the plaintiff to show cause why the judgment should not be vacated. The application to vacate the judgment was granted. The plaintiff then obtained leave to serve and file a supplemental complaint, alleging that since the commencement of the action the county of Cass
Appellant claims that the taxes for the years 1900 and 1901 are void for want of a valid assessment. It is conceded that in botli years the land was assessed to L. R. Freeman, and that he was not the owner of the land. Does this fact render the assessment void? We are agreed that it does not. The assessments were made under chapter 126, p. 256, Laws 1897. A real estate tax imposed under-this act does not become a personal obligation against the owner, but is merely a charge against the land itself. In other words, the-entire tax proceedings as to real estate are in rem, and not in personam. There is no provision in our state constitution which requires that real estate shall be assessed in the name of the owner. It was entirely competent, then, for the legislature to provide that real estate should be assessed without any reference whatever to the name of the owner; that is to say, by any such description or method as would have been legally adequate to convey either actual or constructive notice to the owner (Castillo v. McConnico, 168 U. S. 674, 18 Sup. Ct. 229, 42 L. Ed. 622), and to declare that land “shall be chargeable with taxes, no matter who is the owner, or in whose name it is assessed and advertised, and an erroneous assessment does not vitiate a sale for taxes.” (Witherspoon v Duncan, 4 Wall. 217, 18 L. Ed. 339). Section 179 of the state constitution provides that “all property * * * shall be assessed * * * in the manner prescribed by law.” This section gives the taxpayer a constitutional right to have the mandatory provisions of the law regulating assessments complied with. Are the
Appellant also assigns error upon an order of the district court opening the default judgment and in permitting Cass county to answer. The propriety of the order cannot now be considered. An amended abstract filed by respondent shows that the plaintiff appealed from the order vacating the judgment, and that the order was affirmed by this court. The propriety of the order is not,, therefore, open to review upon this appeal.
Judgment‘affirmed.