125 N.W. 1059 | N.D. | 1910
Lead Opinion
This is an appeal from the district court of Emmons county, and defendant and appellant specifies that he desires a review of the entire case in this court. The action is a statutory one to determine adverse claims to certain real property; . the complaint being in the statutory form. The answer is a general denial, and also contains new matter by-way of counterclaim, in which defendant sets up title to the property through certain tax proceedings under the so-called “Wood Law” (Laws 1897, c. 67), by which it is alleged the county acquired title to said, lands and subsequently conveyed the same to defendant’s grantor, the latter conveying such lands to defendant by warranty deed, and asks to have his title quieted as against plaintiff.
The facts are all stipulated, and are in substance as follows: That plaintiff was, on November 1, 1899, and for more than three years prior thereto, the owner of the property in question, and (hat he is still such owner, unless his title thereto has been divested by the tax proceedings hereinafter set out; that on October
The only proof of notice of expiration of the time for redemption from such sales and service thereof is contained in Exhibits 3 to 9, inclusive. Exhibit 3 is an affidavit by one Allen, county treasurer, in which, among other things, he makes oath that: “On September 6, 1899, being at least 90 days preceding the expiration and maturity of said tax sale certificate, he gave notice for Emmons county of the expiration and maturity of said tax sale certificates to Alexander McKenzie, the owner of said land and a resident of the state of North Dakota, by depositing in the United States post office at Linton, N. D., a true copy of the original notice of expiration of redemption, dated September 2, 1899, which said notice is hereto attached and made a part of this affidavit, and mailing the same by registered letter, registry fee and postage thereon prepaid, said copy being inclosed in an envelope addressed to Alexander McKenzie, St. Paul, Minn., his last-known post office address, on said date, * * * and affiant received, upon mailing said copy at said post office, * * * the registry receipt attached; and affiant, after said last-named date, received the registry return receipt hereto attached, also by leaving at the place of residence of said Alexander McKenzie in Bismarck, N. D., a true copy of the notice of expiration of redemption hereto attached.” The notice referred to the affidavit addressed to Alexander McKenzie recites the tax proceedings and the facts of the sale under the judgment, the time when the right to redeem will expire, a description of the land, and in other respects appears to be in conformity with the statute, with the exception that it is signed “Emmons County, N. D., by W. H. Allen, County Treasurer.” There is also annexed to such affidavit a certificate purporting to be made by the sheriff of Burleigh county, in which he certifies that he served such notice on September 6, 1899, on Alexander McKenzie, by leaving at the Sheridan House in Bismarck, the place
In such stipulation of facts it is agreed that Alexander McKenzie, during all the times mentioned, was a resident of Bismarck, N. D., his place of residence being at the Sheridan House in said city; also that said lands were wholly unoccupied during all the times mentioned. It is further stipulated that on November 18, 1901, the county of Emmons sold and conveyed its interest in such real property to the Hackney-Boynton Land Company for a valuable consideration, by a deed of conveyance executed by the county auditor, pursuant to a resolution of the board of county commissioners, and that the Hackney-Boynton Land Company, for a valuable consideration, sold and conveyed by warranty deed, its interest in said land on August 1, 1904, to defendant. The stipulation next recites that such real property was assessed for taxation, and taxes levied thereon for the years 1895-6-7-9-1900-1-2-3, and that such taxes were paid by the Hackney-Boynton Land Company on dates' therein mentioned, amounting to $223.40, and that defendant paid to Emmons county certain taxes assessed and levied for the years 1904 and 1905. Until due proof of service of notice of expiration of time for redemption was filed the county acquired, through its certificates, no title to the premises, for the statute (section 14, chapter 67, Laws 1897) expressly provides: “The fee simple of any piece or parcel of land named in any certificates shall not vest in the holder thereof until the notice provided for herein is given and due proof thereof filed with the clerk of 1he district court.” See, also, Darling & Angell v. Purcell et al., 13 N. D. 288, 100 N. W. 726. In order to establish his alleged
When the owner of the property is a resident of this - state the statute requires personal service to be made on him of the notice of the expiration of time for redemption. It is respondent’s contention, and the trial court so held, that the stipulated facts fail to show a compliance with the statute in this respect. In this we think they are correct. It is not contended by appellant that personal service of such notice was in fact made; the contention merely being that the stipulated facts show the equivalent of personal service. In this they are in error. The delivery by the sheriff of the copy of such notice to W. J. Freede, an employe at the Sheridan House, falls far short of personal service upon McKenzie. For all that is contained in the alleged proof of such service McKenzie may have been actually in his room in said hotel at the time the sheriff left with said employe the copy of such notice. The personal service required by the statute- must, we think, be made in the manner of making personal service of a summons as provided by section 6838, Rev. Codes 1905. That action, so far as applicable, reads as follows: “The summons shall be served by delivering a copy thereof as follows: * * * (7) In all other cases, to the defendant personally and if the defendant cannot conveniently be found, by leaving a copy thereof at his dwelling house in the presence of one or more of his family over the age of 14 years; or if the defendant resides in the family of another, with one of the members of the family in which he resides over the age of 14 years. Service made in any of the modes provided in this section shall be taken and held to be personal service. * * *” Plaintiff had no family, nor was he residing in the family of another within the meaning of the statute. His 'residence was at a public hotel; hence the service which, under the statute, would be valid and binding upon him could be made only by delivering to him personally the notice required. For like reasons the attemptea substituted service by registered mail, even if the proof thereof was complete, is utterly unavailing. As said by this court in Bank v. Holes, 12 N. D. 38, 94 N. W. 764: “The term 'personal service’ has a fixed and definite meaning in law. It is service by deliv
By the prayer of the answer-defendant asks that, if for any reason the court shall decide that his. claim of title under the tax proceedings and deeds is declared -invalid, he be adjudged to have a lien on said land for all taxes paid, and that, plaintiff, as a condition to his obtaining the relief prayed for, be required to pay all such; taxes, together with interest, penalty, etc., including the taxes paid by the Hackney-Boynton Land Company, as well -as himself. While counsel for appellant make no reference in their brief to such point, we deem it proper to briefly notice the same. It is entirely clear that, if the deed to the Hackney-Boynton Land Company operated to assign to it the lien of the county against this land for the unpaid taxes, interest and penalty, defendant, by the deed to him, acquired an assignment of such lien, and that a court of equity would not grant plaintiff the relief prayed for, except upon condition that he first reimburse defendant for the amount of such taxes, interest and penalty. Did the deed, executed and delivered to the Hackney-Boynton Land Company by the county auditor of Emmons county, thus operate to transfer the county’s lien? The legislature, in enacting the Wood Law, saw fit to prescribe the manner in which its rights, under such certificates, might be assigned, and also prescribed a form for use in making such assignments, and it will be observed by reading said
One conclusion is that the judgment should be modified in the following particulars: An account should be taken of the amount of all taxes, including interest and penaltites paid to the county, either by the defendant or his grantor, and that judgment be entered in plaintiff’s favor for the relief prayed for, upon the condition, however, that plaintiff first pays to defendant, or to the clerk for his benefit, the amount of such taxes, interest and penalties, together with interest thereon from the date the same were paid to the county, at the rate of 7 per cent per annum. As thus modified the judgment is affirmed. Appellant shall recover his costs on this appeal.
Concurrence Opinion
(concurring). I concur in the foregoing-opinion, except that I express no opinion as to service of a notice, by leaving a copy with the clerk of a hotel at which a party to be served resides, being personal service. Assuming that service of the notice
