135 N.W. 663 | N.D. | 1912
This is an appeal from an order of the district, court of Bottineau county sustaining a demurrer to the complaint upon the ground that such complaint fails to allege facts sufficient to-constitute a cause of action.
Omitting formal parts the complaint is as follows:
(1) That the plaintiff herein Y. B. Noble is the duly appointed, qualified, and acting administrator of the estate of D. McBrayen, deceased, and that-the plaintiff Lizzie McBrayen is the only heir and
(2) That the defendant J. P. Simon is the duly elected, qualified, and acting auditor of the county of Bottineau and state of North Dakota.
(3) That at the time of the death of the said D. McBrayen, in the year 1905, he left as part of his estate the following-described property, to-wit: Lot 6, lot 23, and lot 24, all in block 16 of South Bottineau (now city of Bottineau), in said Bottineau county.
(4) That on the 3d day of December, 1907, said real property described in paragraph 3 hereof was sold at a certain tax sale held in Bottineau county, to the above-named defendant W. H. McIntosh, for the unpaid tax levied and assessed for the year 1906, which said tax, interest, and penalty at the time of said sale amounted to $21.96 for the said lot 6 hereinbefore described, and the sum of $193.76 for the said lots 23 and 24 hereinbefore described, and tax certificates were issued thereon to the said defendant W. H. McIntosh for said above-named sums.
(5) That the plaintiffs are informed and believe, and. from such information and belief allege the fact to be, that the defendant W. IT. McIntosh is now the owner and holder of said tax-sale certificates.
(6) That at said 1907 tax sale in said Bottineau county the said lots were not fairly and in good faith offered for sale and sold at public vendue, for the reason that at said sale the persons then and there present as purchasers refrained from bidding against one another under an understanding that the bids for the city and village property to be sold at such sale should be for the full rate of 24 per cent, together with a 5 per cent penalty, and that whenever any person present at said sale should enter a bid for the full legal rate of interest, 24 per cent, that no person should bid against him, thereby eliminating all competitive bidding at such tax sale, and as a result of such arrangement the premises hereinbefore described were sold to the defendant ¡W. H. McIntosh for the full obtainable rate of 24 per cent, together with 5 per cent penalty; that the defendant McIntosh is a professional tax purchaser in Bottineau county, and for years has been a regular purchaser at the annual tax sales held therein, purchasing large numbers of tracts under an express or tacit understanding that all the property
(7) That the defendant J. P. Simon is threatening to give notice of the expiration of the period of redemption from said tax sales to said property, and the defendant W. H. McIntosh is threatening to demand from the said J. P. Simon a tax deed to said real property above described.
(8) That unless restrained and enjoined by an order of this court the defendant J. P. Simon, as auditor, will give notice of the expiration of the period of redemption from said tax sales, and the said defendant W. H. McIntosh will demand and receive from the said J. P. Simon a tax deed to the said real property above described, and the plaintiffs will he irreparably damaged thereby, and for such damage plaintiffs have no plain, speedy, or adequate remedy at law.
Wherefore, plaintiffs pray judgment as follows:
(1) That an order issue from this court, enjoining and restraining the said J. P. Simon and his successors in office from giving notice of the expiration of the period of redemption from said tax sales, and from issuing any deed based on such tax-sale certificates, and from doing any act whatsoever with reference to said tax-sale certificates, and that the defendant, W. H. McIntosh, his agents, servants, and attorneys and each of them be enjoined and restrained from demanding of the said J. P. Simon and his successors in office that he give notice of the expiration of the period of redemption of said tax-sale certificates, or from demanding any deed therefor.
(2) That the said tax certificates for said property be declared illegal and void, and canceled of record as a cloud on plaintiff’s title.
(3) For costs and disbursements of suit and for such other and further relief as to the court may seem just and agreeable to equity.
At the outset it will be observed that the action is not the statutory action to determine adverse claims, but on the contrary is analogous to the case of Powers v. First Nat. Bank, 15 N. D. 466, 109 N. W. 361, the object being to have certain tax certificátes adjudged null and void and canceled of record, and perpetually enjoining the issu
We have not overlooked the case of Nichols v. Russell, decided by the Kansas City court of appeals, reported in 141 Mo. App. 140, 123 S. W. 1032, and relied on by appellants’ counsel in support of their contention. We have carefully examined this case, and are unable to con
The order appealed from is. affirmed.