Murphy v. Wilson

163 N.W. 820 | N.D. | 1917

Lead Opinion

Robinson, J.

This action is the second edition of a similar action commenced seven years ago to quiet title to a half section of land in Logan county. (S-i 23 — 134—73). The defendants own the patent title, and the plaintiffs claim under tax deeds which are void on their face, and appeal to this court from a judgment against them.

In August, 1912, the plaintiffs obtained a default judgment against the Wilsons and John B. Mulvane; to the effect that they have no estate or interest in, or lien or encumbrance upon, said property. The title to the property was in the corporation, and it served an answer claiming title, but during the protracted litigation it died and expired by lapse of time, and was succeeded by the parties that had made default. Then the plaintiffs moved to dismiss their action against the corporation, with a view of insisting on their default judgment against the other defendants. The case went to the supreme court (28 N. D. 521, 149 N. W. 957), and it was held that the default judgment was properly set aside, and that the motion for substitution of the trustees should have been granted and the action continued against them under new pleadings, and so the case was remanded.

On June, 1916, judgment was duly entered quieting title in the defendants, and the plaintiffs appealed to this court, demanding a review of the entire case. The review is short. The defendants have the patent title, and the claim of the plaintiffs is based on two tax deeds which are obviously void on their face. The tax deeds are dated January 30, 1906. One deed recites a sale made in December, 1902, for the taxes of 1901 of the S. W. section 27, township 134.-, range 73, to W. O. Foster, for the sum of $10.99, being the amount of taxes, penalty, and costs charged against the land, and that the sale was made for the smallest or least quantity of the tract that would sell for the total amount of the taxes, penalty, and interest. The other tax deed was in all respects the same, only the tract described in S. E. of the same section. As the sale was made in December, 1902, it was made under chap. 114:, Laws 1901, which provides that at a tax sale each tract or lot shall be offered separately and struck off to the bidders who will pay the total amount of taxes, penalty, and costs charged against it, for the lowest rate of interest from the date of sale. Now it appears from the tax deeds that the sales were made in a manner not authorized by statute, and so it appears from the tax sale certificates. And hence they are all obviously void on their face. The record shows several other fatal defects, needless to consider. One such defect is quite enough. There was no reason for making a long, protracted, and expensive defense of several years, or any defense in this case. There was no reason for taking a mass of evidence on matters having no bearing on the title to the land.

And there is no possible reason for arguing that the plaintiffs have any claim under a default judgment, which has been set aside and held void by the district court and by this court. 28 N. D. 521, 149 N. W. 957. When the original action was commenced in February, 1910, it was based on the void tax deeds, and those deeds are still void. The complaint stated no cause of action against any party only the Kansas Land & Loan Company. It averred that the company owned the patent title to the land, and that the other defendants might claim some title or interest as the incorporators and stockholders. Now then, the plaintiffs dismissed their action against the company, and took a default judgment against the other parties, declaring that they had no title or interest in the land. Now, pending this long-winded and manifestly groundless action, the corporation has ceased to exist, and the other defendants have succeeded to the title of the corporation, and they have been made parties to the action and obtained a judgment which is manifestly just and right. And as the defendants paid into court, for the benefit of the plaintiffs, all sums of money paid by them as taxes, regardless of the validity of such taxes, the plaintiffs have no cause for complaint. The judgment is affirmed.

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Rehearing

Upon Petition for Rehearing.

Robinson, J.

Some three years ago this action was commenced by the plaintiffs against the defendants and against a corporation which, then had title to the land in question. The complaint in that action averred that the defendants in this action were made parties, not because they then had any claim or title to the land, but because they might acquire title. The complaint stated no cause of action against the defendants in this action, but, on failure of the defendants to answer, plaintiffs took a default judgment, declaring that the defendants had no title or interest in the land. The default was very properly set aside, and the judgment setting it aside is not in any way open to review or question.

The case was duly brought to trial on the issues presented by the respective claims of the plaintiffs and the defendants. The district court gave judgment in favor of the defendants, which has been affirmed by the decision of this court. Now the plaintiffs present a petition for rehearing, virtually attacking the decision of this court and asking the court to reconsider several matters having no bearing on the case. Such a petition looks like an imposition. The default judgment is not in the case. It was completely wiped out by the decision of this court. The plaintiffs’ claim of title is based on a tax deed manifestly void on its face. The plaintiffs have never had any color of title to the land or any reasonable excuse for this long-protracted litigation. It is conceded that Jones T. Wilson owned the patent title to the land, and he made a deed purporting to convey it to his corporation, which has ceased to exist, and now he and the other defendants have the patent title and a right to the immediate possession of the land without any further delays or vexatious litigation.

Motion denied.

Birdzell, J.

Counsel for appellants have filed a long petition for rehearing in this case, which is directed, not only to the opinion filed upon this appeal, but, as is the case with a large portion of the brief on appeal, to the former decision of this court in the case of Murphy v. Missouri & K. Land & Loan Co. 28 N. D. 519, 149 N. W. 957, as well. It is contended that because the defendants, some of whom had defaulted before the original trial, had been referred to in the complaint as those who “may claim some interest or estate in said land, so they (plaintiffs) are informed and believe because they are incorporators, stockholders, or trustees in the Missouri & K. Land & L. Co.,” a default judgment against them in individual capacity would prevent them from subsequently asserting a title that might devolve upon them as trustees of a defunct corporation. This question was disposed of upon the former appeal, and the rule there laid down and directions given have become the law of the case. In that appeal the default judgment was set aside and the trustees’ names were ordered substituted as of September 3, 1912, the date of their application. It is strenuously argued that neither the district court nor this court had power to enter any order or judgment depriving the plaintiff and appellant of the benefit of the default judgment previously obtained. But this court is of the opinion that, from its commencement to its conclusion by a final judgment, the district court and this court, upon appeal under the de novo statute, have ample authority to enter such orders, or to modify any orders previously entered, as to enable it to render a proper judgment upon the merits. Furthermore, this court is of the opinion that the former decision touching this question has become the law of the case.

The petition enumerates a number of questions relating to the power of the defunct corporation to hold a title which could descend to the trustee defendants as its successors. These are raised and discussed in the brief, but are not referred to in the original opinion filed upon this appeal. If all the contentions of the appellant in this connection are correct, we do not see wherein their title is strengthened. These are questions which the original grantor could not raise, because he is not permitted to thus collaterally attack the corporate existence (10 Cyc. 1134), much less can they be raised by one who is a stranger to the chain of the title. The petition for rehearing is denied.

We concur in Mr. Justice Birdzell’s opinion on the rehearing: Bruce, Grace, and Christianson, JJ.