88 N.W. 97 | N.D. | 1901
This action is brought to recover the possession of land situated in the town of Berlin, in Cass county, described as follows : “The southwest quarter of the southeast quarter of section 32, in township 141, of range 50. The complaint states that the plaintiff is the fee-simple owner of the land, that the defendant is unlawfully in possession thereof, and that he unlawfully withholds such possession from the plaintiff. The answer denies the plaintiff’s allegation of ownership, and alleges, as a counter claim, that the defendant owns the land in fee simple; and defendant demands, as affirmative relief, that the title be quieted in the defendant. Plaintiff, by way of reply, denies the allegations of the answer, and alleges that the defendant is barred by the statute of limitations from asserting any defense against the plaintiff’s title. Defendant offered no evidence of title, but it is conceded that the defendant was in possession of the land when the action was commenced, and had been in possession
The sole contention arises upon the validity of the tax deed. At the trial defendant sought to impeach the tax deed as evidence of title in the plaintiff, and for this purpose defendant put in evidence certain records connected with the assessment and sale of the land for the taxes of 1888. The assessor’s return for the town of Berlin, so far as the same related to the land in question, was put in evidence. Attached to the return was an affidavit of the assessor. At the top of this paper the venue of the affidavit is stated as follows: “Territory of Dakota, County of Cass.” The affidavit purports to have been made by one C. A. Gardner, assessor in and for the town of Berlin. The body of the affidavit is not criticised. It is subscribed as follows: “C. A. Gardner, Assessor.” The certificate or jurat, which follows the signature is as follows: “Subscribed and affirmed to before me this 28th day of January, 1888. S. M. Edwards, Town Clerk.” The tax list for the taxes of 1888, as turned over to the treasurer for collection, as far as the same relates to this land, was introduced in evidence. The land in question was described in the list as follows: “S. W. 4 of S. E. 4 of section 32, town 141, range 50.” As has been seen, the affidavit annexed to the assessor’s return showed by its venue that the oath was taken within the territory of Dakota, and in the county of Cass, but failed to show the town in. which the oath was administered, or that it was administered within any town. Counsel for the respondent contends that the return is not shown to have been verified by affidavit, as required by section 1551, Comp. Laws 1887. This contention is important in this jurisdiction, for the reason that the rule is established here that the affidavit of verification is essential to the validity of an assessment return. See Eaton v. Bennett, 10 N. D. 346, 87 N. W. Rep. 188, and cases cited. But we cannot assent to the proposition of counsel that the return in this case was not verified. The strict rule established by the earlier cases, and that which still seems to obtain in the state of New York, is that an affidavit, to be valid, must show on it face that the oath was administered within the territory in which the officer who administered it had authority to act- officially. See cases in 1 Enc. Pl. & Prac. p. 313. But this rule has been relaxed in many states. See State v. Henning, (S. D.) 54 N. W. Rep. 536, and numerous cases there cited. The modern and more liberal rule, as laid down in the cases
But the jurat of this affidavit presents another defect, which, in our judgment, is much more serious. The jurat is as follows: “Subscribed and affirmed to before me this 28th day of January, 1888.” The date of the affidavit, as stated in the jurat, if it be the true date shows beyond doubt or question that the assessor’s return of 1888 was not in fact verified by the oath or affirmation of the assessor. It is physically as well as legally impossible that it should have been verified on January 28, 1888. Ño assessment for the year 1888 could have been lawfully made and incorporated in the return as early as January 28, 1888. Assessors were expressly forbidden to commence the assessment before -the first day of May of each year. Gomp. Laws 1887, § 1546. Whether the law would permit so important a record as the return of an assessor to be corrected by evidence aliunde is very doubtful, but this need not be discussed in the case at bar, as no evidence was offered for this purpose. It might be argued that the error is an obvious clerical error, and that this court should so construe it, in favor of the tax-title holder. But, in our opinion, this course is not open to the court. If we should by our construction of the language of the jurat expunge the date (January 28, 1888), the affidavit would then be devoid óf a date, and from it, therefore, no one would be informed whether the affidavit was affixed to the return at or prior to the date of filing the same with the county auditor or whether it was affixed at some later date in that year or in some subsequent year. Nor could this court in the absence of testimony upon the point, venture to insert some other date in the jurat in lieu of that actually stated. Besides, it should not be overlooked that all tax proceedings are in theory and in fact in invitum and ex parte. The rule is well settled that all the essential steps of the process of taxation must appear upon some record, and the further rule is equally well established that a bidder at a tax sale is chargeable with notice of all defects in tax proceedings which lead up to and include a tax sale. We are therefore driven to the conclusion that this record shows that the assessor’s return for the year t888 was not verified. This omission compels the court to hold, under the rule laid down in Eaton v. Bennett, supra, that the alleged assessment of the land was and is void.
But this court has reached the further Conclusion that the tax deed is invalid for other and independent reasons. The deed shows on its face that it was issued pursuant to a tax sale made b}r A. H. Burke, as county treasurer, and the deed recites, in effect that said
We turn to another question which arises upon this record. It .appears that the parcel of land in dispute was described in the tax list as certified to the county treasurer for collection, as follows : “S. W. 4 of S. E. 4 of section 32, town 141, range 50.” It further appears that the tax charged against this description was never paid, and that to collect the same, with certain costs and charges added, the county treasurer sold the land on November 4, 1889. Before
But counsel cite the case of Iowa & D. Land Co. v. Barnes Co 6 N. D. 601, 72 N. W. Rep. 1019, and argue that this court held in that case that it was neither a ‘'mistake nor wrongful act” upon the part of a county treasurer to sell land at a tax sale upon descriptions. similar to that found in this case. But this case, as we view it, is not at all in point. We were not passing in that case upon the validity of any tax deed as such, or upon the validity of any tax sale as such. We held in that case that the county treasurer could not be held responsible under the statute for sales of land so described, because he did not fabricate the descriptions, and was not responsible for the same. But counsel for the appellant, in a brief filed in ¡.his court, embracing 36 printed pages, have bestowed comparatively little attention upon the question whether the irregularities in the tax proceedings which appear in this record are of a serious character or otherwise, or whether they exist in fact, or do not exist. This indifference of the appellant’s counsel to the irregularities pointed out by counsel for the respondent is, however, explained by the fact that, from the standpoint of the plaintiff’s counsel, such irregularities, if they exist at all, have been wiped out by curative legislation enacted, or which could be enacted, for the express purpose of curing all such irregularities as are here complained of. Counsel cite Roberts v. Bank, 8 N. D. 504, 79 N. W. Rep. 1049, as sustaining the general proposition of law that a tax sale operates as a contract, in which the law governing the same enters as a constituent part To this proposition we assent. But counsel’s next premise is that the contract made by the tax sale in question was a contract between the purchaser and the territory of Dakota, and hence was and is a contract governed by the law in force during the territorial regimen, and hence that such law is in no respect hampered by any restrictions, upon legislative action which may be found in the constitution of the state of North Dakota. To this proposition we may not assent, for the reason that it involves a mistake of fact. The tax sale in question was made on November 4, 1889. At that time the state of North Dakota had emerged from a condition of territorial vassalage, and was in the full enjoyment of its status as a sovereign state of the Federal Union. See section ix of-the state constitution; also the proclamaion of the president of the United States .admitting the state of North Dakota into the Union; Rev. Codes 1895, p. 55. It therefore appears that the contract resulting from the tax sale