81 N.W. 65 | N.D. | 1899
For the purposes of the questions involved in this appeal, it may be said that the plaintiffs, as the receivers of the Northern Pacific Railroad Company, brought this action to cancel tax deeds upon certain lands situate in LaMoure county, in this state, which said lands formed a part of the place lands in the original grant of lands by congress to said railroad company, and which said lands the said County of LaMoure, by its proper officials, sold to the defendant, William Brett, at the tax sale in 1889, for the alleged taxes that had been assessed and levied thereon for the year 1888. Subsequently deeds were issued upon such sale to said defendant. It has been judicially determined that said lands were not subject to taxation by the county in said year. McHenry v. Alford, 168 U. S. 651, 18 Sup. Ct. 242, 42 L. Ed. 614; Wells Co. v. McHenry, 7 N. D. 246, 74 N. W. Rep. 241. This is conceded by said defendant, and the cancellation of said deeds is not now resisted. But the said defendant set forth in his answer, by way of counterclaim, that in January, 1890, he paid the taxes upon said lands that had been assessed and levied thereon for the year 1889, setting forth the amounts so paid; and he asks that judgment be rendered in his favor, and against plaintiffs, for the amounts so paid, with interest, penalties, and costs. It will thus appear that the single question presented for our determination is whether or not a party who purchases land at a tax sale for an unwarranted and void tax can pay subsequent valid taxes thereon, and recover from the owner the amount of the valid tax subsequently paid by him. The trial court held against the proposition, and defendant, Brett, appeals.
At the time of the sale in question, section 1643, Comp. Laws, was in force, which declares that, whenever an action is brought to set aside a tax deed, “the true and just amount of taxes due upon such property or by such person must be ascertained and judgment must be rendered and given therefor against the taxpayer.” It is doubtless true, as contended by counsel, that whatever rights then accrued to the purchaser by virtue of said statute, and other then-existing statutes in pari materia, assumed the form of contract rights, and could not be destroyed by susequent legislation. Roberts v. Bank, 8 N. D. 504, 79 N. W. Rep. 1049, and cases cited. Roberts 1626, Comp. Laws, contains this language: “The purchaser acquires the lien of the tax on the land and if he subsequently pay any taxes levied on the same whether levied for any year or years previous or subsequent to such sale, he shall have the same lien for them, and may add them to the amount paid by him in the purchase.” And section 1635 declares that “the owner or occupant of any land sold for taxes” may redeem the same within a specified time by paying the amount for which the sale was made, with
These views lead to an affirmance of the decree in this case, but, before closing the opinion, it is proper to say that the writer hereof, while speaking of this same general subject, used language in Roberts v. Bank, 8 N. D. 504, 79 N. W. Rep. 1049, which is perhaps inadmissible. It was there said that since the passage of chapter 126, Laws 1897, a tax-sale purchaser, whose purchase was held invalid, must in all cases look to the county for reimbursement. It was said that the matter pertained to the remedy only, and was subject to legislative control. A further examination of the statute shows that such statement was incorrect. The statute does not