151 N.W. 768 | N.D. | 1915
Tbis action involves tbe refund of money paid to a county for void taxes under § 2338, Comp. Laws 1913. August 8, 1892, tbe government issued its patent to a quarter section of land in Eolette county to one Jaspard Jeanette, a homestead entryman. Prior thereto Jeanette bad given a certain mortgage to one Daly, who bad assigned tbe same to Vincent P. Cash, who in turn assigned tbe same
August 24, 1893, the United States government filed its bill in equity in the circuit court for the district of North Dakota, alleging fraud upon the part of the entryman, Jeanette, and asking the can-celation of the patent. Jeanette, his wife, and Daly were the original defendants, and were all served with the jurisdictional subpoena in August or September, 1893. No lis pendens was filed at this time, nor were any further steps apparently taken in the action until nearly ten years later. In the meantime taxes were levied against the premises for the years 1892-3-4, and on the 22d of- November, 1897, the premises were sold and bid in by the county of Bolette for the sum of $69.53, and thereafter on the 1st day of December, 1898, said tax certificate was assigned to one David Hutton by an instrument in writing signed by the treasurer of said county, said purchaser being required to pay the taxes for the year 1895-6-7, making a total of $126.66. Thereafter said purchaser likewise paid the taxes for the years 1898-1902, both inclusive, under his certificate of sale as aforesaid.
April 29, 1903, the government filed an amended bill in equity including as defendants the assignees of the mortgage, Cash and Simmons, the county of Eolette, and also Hutton. Subpoenas were served upon the new defendants in the manner which will be hereinafter mentioned, but no answer was interposed by any of them, and judgment pro confesso was taken on August 21, 1906. Lis pendens was filed April 30, 1903.
This decree canceled the patent and specifically set aside the taxes hereinbefore enumerated, upon the grounds that the land during all of the time had been the property of the United States government.
Thereafter, by an instrument in writing, the tax certificate holder, Hutton, assigned his cause of action against the county to the present plaintiff, Leach, who brings this action for a refund of the amount paid by him, basing his cause of action upon § 28, chap. 67, Sess. Laws 1897, now found at § 2338, Comp. Laws 1913, which reads as follows: “When a sale of lands as provided in this article is for any cause declared void by judgment of court, the money paid by the purchaser at the sale, or by the assignee of the state or county, upon taking
(1) The first proposition advanced by appellant relates to the sufficiency of the complaint, it being attacked by demurrer and also by objection to the introduction of any evidence. He states: “The complaint does not state that a 'sale of land’ as provided by the law is for any cause declared void by judgment of court. We are called upon to have, not a tax, not a patent, not a judgment, but a ‘sale of land' declared void, to entitle the return of the money paid out therefor.”
The objection is too technical to have merit. The statute uses the expression ‘sale of lands shall be declared void,’ of course, but in this case the sale was in effect declared void by the same language that declared the tax void.
(2) The second error assigned by appellant relates to the introduction in evidence of the assignment from the county to Hutton. There is no merit in this contention. Plaintiff, in paragraph three of his complaint, alleges: “That thereupon one W. A. Duncan, the then treasurer of said Rolette county, agreeable to the provisions of said law, did make, execute, and deliver to said David Hutton an assignment and transfer of the whole right, title, and interest of said county in and to said premises, so acquired by said county at said sale,” which said assignment of said certificate of sale bears date of December 1st, 1898.” Defendant answers as follows: “Defendant admits the allegations of the complaint set forth in paragraphs one, two, three, and eight.” The matter was therefore not at issue, having been established by the admissions of the answer.
(3) Appellant’s third proposition is that, in any event, plaintiff should recover for the taxes paid upon his certificates subsequent to the purchase by him from the county. He insists that the subsequent taxes were taken at the risk of the purchaser, and the county is not liable for redemption, and cites us to Tyler v. Cass County, 1 N. D. 369, 48 N. W. 232. The Tyler opinion, however, was filed November 29, 1890, almost seven years before the enactment of either of the above-mentioned sections, and construed § 1629 of the Compiled Laws of Dakota 1887, which section is quoted at page 386 of said opinion. It - is therefore not authority in this case, unless- possibly to hffid
As so read, it aids tbe plaintiff in this case. On tbe 1st day of December, 1898, Hutton paid to tbe county of Rolette $126.66 “upon taking tbe assignment.” This amount be was obliged to pay under tbe law to obtain tbe interest of tbe county in tbe land, and for this amount recovery should be bad with interest at 7 per cent. Tbe payments, therefore, made by Hutton for tbe years 1898 — 9, 1900 — 1—2, were not paid by tax sales under tbe general law, nor is tbe county liable therefor under tbe Wood act. As to such voluntary payments, plaintiff is entirely without remedy. In this respect tbe judgment of tbe trial court is erroneous, and must be modified.
(4) A fourth assignment of error relates to the reception in evidence of tbe exemplified copies of tbe decree entered in tbe Hnited States court. This assignment is without merit, as defendant admits in bis answer tbat such a suit bad been instituted and prosecuted to final decree “in substance, as set forth in paragraph 6 of tbe complaint, but defendant denies tbat this defendant was ever served with process.” Aside from this admission of tbe salient facts of tbe decree which plaintiff bad set forth in bis complaint, tbe copies presented were certified as correct by tbe clerk of tbe Hnited States circuit court under the seal of tbe court, and tbe whole was authenticated by tbe signature of tbe presiding judge, being substantially in compliance with § 7911, Comp. Laws 1913.
(5)- Tbe next assignment of error relates to findings of fact found by tbe trial court following tbe adjudication made by tbe Hnited States circuit court, viz., tbat tbe land was- not subject to taxation, also tbat service bad been made upon Rolette county of process in tbe above-mentioned action. Tbe decree of tbe Hnited States circuit court show's On-its face tbat service was made upon tbe county on tbe 31st day of
Freeman on Judgments, § 130, which reads: “A finding or recital showing that the court had jurisdiction is, in the vast majority of the states, not disputable when a judgment based thereon is drawn in question collaterally.” Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742; Quivey v. Porter, 37 Cal. 458; McCauley v. Fulton, 44 Cal. 355, from which we quote: “It has been repeatedly held by this court that upon collateral attack recitals in the judgment of service upon the defendant are conclusive of the question of jurisdiction of the person, when the judgment is rendered by a court of superior jurisdiction.”
Schee v. LaGrange, 78 Iowa, 101, 42 N. W. 616, from which we quote: “The record shows that the court adjudged the service sufficient; and, this being a collateral proceeding, the judgment cannot be thus attacked.” Scaman v. Galligan, 8 S. D. 277, 66 N. W. 458; Phillips v. Phillips, 13 S. D. 231, 83 N. W. 94; Emery v. Kipp, 154 Cal. 83, 19 L.R.A.(N.S.) 983, 129 Am. St. Rep. 141, 97 Pac. 17, 16 Ann. Cas. 792.
It might be stated in passing that.the only objection to the service upon the county is that the copy of the subposna was served upon the wife of the chairman of the board of county commissioners, instead of upon him personally. It might also be said that the respondent insists that Rolette county was not a necessary party to the suit in the United States court, for the reason that at the time of the rendition, of the decree said county had parted with all its interest and lands aforesaid to Hutton, who was duly served.
(6) The sixth position advanced by appellant is that Hutton, and therefore this plaintiff, is estopped to maintain this action because he-(Hutton) did not defend the suit wherein the taxes were set aside. We do not believe this is material. It is not only possible, but probable, that the claim of the United States government to the effect that the land had been fraudulently patented was true, and if Hutton knew this.
(7) Appellant next urges that Hutton cannot recover because he took the assignment and paid his money “long after the said action is alleged to have been commenced by the United States of America.” This might be successfully urged if it were supported by evidence that Hutton knew of the suit, but upon an examination of the record we find no evidence of any knowledge upon his part, and the lis pendens was not filed until April 30, 1903, long after the payments hereinbefore mentioned were made.
(8) It is next urged by appellant that Hutton, had he defended,, should have prevailed in the suit- in the United States circuit court. A complete answer to this is that he did not so prevail. The decree as entered is the one with which we must deal.
(9) Appellant next calls our attention to the last portion of § 2338, Comp. Laws 1913, being the fact that if such purchaser shall, after-such purchase or assignment from the county, have paid the tax, penalties, and interest, etc., he shall have a lien upon the land for the-amount of the taxes. This relates entirely to the taxes for-which, under paragraph three of this opinion, the county is not liable, and is therefore now immaterial. Moreover, in this case such section is absolutely no aid to the plaintiff, owing to the fact that the taxes themselves were swept away and the title to the land held to be in the United States government. There are other items of error so closely allied to the above that they are governed thereby, and therefore all without merit.
' The judgment of the trial court is modified, and as so modified affirmed. Respondent will recover his costs in this appeal.