102 N.W. 174 | N.D. | 1904
This is an action to quiet title to a tract of land in the city of Fargo, and involves conflicting interests to said tract, derived under tax proceedings under which plaintiff and defendant each claim the absolute title and ownership of the tract. The facts, as gathered from the findings of the trial court, which are not in dispute, are as follows: On the 16th day of December, 1897, the land in question was offered for sale by the auditor of Cass county for the delinquent taxes thereon for the year 1896, and, there being no other bidders therefor, the tract was struck off and sold to the county of Cass. On the 22d day of October, 1900, one Bolley made application to the auditor of Cass county for an assignment of the
The sole question at issue is the status of said tract of land, under the revenue law of 1890 (Laws 1890, p. 376, c. 132), after it had been bid in for the state, -and the authority of-the county .auditor over it under that law.. This question has not hitherto been-decided by this court, unless the - case of Emmons County v. Bennett, 9 N. D. 131, 81 N. W. 22, is .in point. Plaintiff contends -that the facts and the statutes under which that case was decided are the same as in the case at bar. - Defendant contends that the Compiled Laws of 1887 and the Laws of 1890 are not the same in-reference to lands bid in for the state. A reference, to the Compiled Laws, as quoted and construed in Emmons County v. Bennett, supra, shows that, when lands were bid -in by the county treasurer.for the county in-the absence of other bidders, the county secured no rights except
The rights of the parties must be measured by the law of 1890. The sale in 1897 was therefore without legal sanction or statutory authority. The assignment to Bolley of the certificate of sale by the county auditor was not authorized by law, as the auditor alone had no power to dispose of forfeited lands under any circumstances. Chapter 126, p. 256, Laws 1897, did not affect sales already made under previous laws, and pertained to revenue and taxation prospectively only. The law under which Emmons County v. Bennett, supra, was decided, did not have the provision in it that is found in section 86, chapter 132, p. 408, of the 1890 revenue law, which says that lands bid in for the state shall not be taxed after forfeiture. The provisions of section 86, supra, are sufficient alone for holding that the two laws are not substantially alike in respect to lands bid in for the state or county. Under section 86, lands bid in for the state are made a class by themselves after forfeiture, and are expressly made nontaxable, and no sale is provided for under the 1890 law for taxes levied on lands bid in for the state. A comparison of the revenue law of 1887 with the 1890 revenue law clearly shows that the procedure in taxation matters relating to forfeited lands is entirely and substantially different. These provisions are so different that the Emmons County case is not applicable under the 1890 law or under the 1897 law. Under both of these revenue laws the auditor has no authority to sell forfeited lands, or lands bid in for the state, of his own motion. His authority under these laws as to sales of such lands was subject to the directions of the state auditor under the 1890 law, and of the county commissioners under the 1897 law.
It is also claimed that State v. Camp (Minn.) 82 N. W. 645, is decisive of this case, and against the county. That case was also decided under statutory provisions unlike our own. In other words, the provisions of section 86, chapter 132, p. 408, Laws 1890, •that lands bid in for the state shall be stricken from the tax lists and shall not be assessed or taxed after forfeiture, are not found in the revenue law of Minnesota, under which State v. Camp was decided.
These cases not béing in point, and none others being cited, we see no way by which to sustain the plaintiff’s tax deed. It was not based upon any law authorizing the sale under which the deed was issued. The assignment and deed were both beyond the authority of the auditor to "execute. The plaintiff’s grantor acquired no valid title under such proceedings, and had none to convey to plaintiff. The provisions of the 1890 law determine his rights, and show the absolute invalidity of his deed. His contract, therefore, fails, because there was no law authorizing the auditor to dispose of the state’s interest in the tract in question, and he is held to have known that the auditor was acting without authority.
It is claimed that the plaintiff’s deed is valid because executed by the auditor, who acted within the scope of his authority, but acted erroneously, and that his acts are binding upon the county. We fail to see that the auditor was acting within the scope of his authority. He possessed no authority to act in reference to forfeited lands at alb on his own motion. His duties are defined by statute. Without statutory authority, express or implied, he cannot act and bind the county. The auditor is not the agent of the county, having, as such, any authority not delegated to him by the statute. As said in Day Company v. State, 68 Tex.526,4 S.W. 865. “Thepowers of all officers are defined and conferred by law, and of these all persons who deal with them must take notice. Acts done in excess of the powers conferred are not official acts.” See, also, State v. Brewer, 64 Ala. 287; Pulaski v. State, 42 Ark. 118.
The plaintiff having no valid deed, nor any right to one, it follows that the judgment must be affirmed.