79 N.W. 1049 | N.D. | 1899
Lead Opinion
Plaintiff brought this action under section 5904, Rev. Codes, to determine adverse claims 'to lot 20, block G, of Charles Roberts’ addition to Fargo. The action was begun August 25, 1898. Plaintiff avers in her complaint that she is the owner in fee of said lot; that the defendants wrongfully claim some title or interest therein under certain tax sales and tax deeds. The defendants answered separately. The defendant bank alleged ownership in fee in itself of the south half of said lot by virtue of a-tax deed issued upon a sale of the same for the taxes of 1888. It also set up a lien by virtue of a purchase from the city for a paving tax levied thereon. The defendant Hodgson claimed title to the north half of said lot by virtue of tax deeds on sales thereof for the taxes of 1889, 1890, 1892, and 1893. There was a reply setting forth matters intended to avoid the tax deeds. The'trial couri sustained those deeds as to each defendant, and the plaintiff appeals and demands a retrial of all the issues in this Court. As the defenses are entirely separate, we shall first consider that made by the bank.
In 1889 one O. P. Smith-purchased the south half of said lot 20 at the regular tax sale for the delinquent taxes of 1888, and received the usual "certificate of sale. A tax deed was regularly issued to him upon said certificate on "January 15, 1892, and the same was duly recorded on February 8, 1892. On May 13, 1895, O., P. Smith, by quit-claim deed, conveyed the property to the defendant bank. It-is urged by the bank that plaintiff cannot now avoid the tax deed issued to Smith. At the time of the sale in 1889, section 1640, Comp. Laws, was in force. It reads: “No action shall be commenced by the former owner'or owners of lands, or by any person claiming under him or thém, to recover possession of land which has been sold and conveyed by deed for non-payment of taxes, or to avoid such deed, unless such action shall be commenced within three years after the recording of such deed.” This section was re-enacted verbatim by section 1269, Rev. Codes 1895,.but was properly, and-in express terms, repealed by section no, Ch. 126, Laws 1897,
It being regarded as established that the south half of said lot 20 was not assessed for taxation for the year 1888, could the tax deed issued upon a sale of said tract for the taxes of said year set the statute of limitations running? There may not be entire uniformity in the decisions upon this point. We think on principle the interrogatory' should be answered in the negative. There being no assessment, the treasurer was without jurisdiction to make a sale or issue a deed. As to such acts he was a private citizen. The deed conveyed nothing in fact. It was void. The decided weight of authority is in favor of this position. Nichols v. McGlathery. 43 Ia. 189; Burke v. Cutler, 78 Ia. 299, 43 N. W. Rep. 204; Townsend v. Edwards (Fla.) 6 South. Rep. 212; Sloan v. Sloan, (Fla.) 5 South. Rep. 603; Hurd v. Brisner, 3 Wash. St. 1, 28 Pac. Rep. 371; Davenport v. Knox, 34 La. Ann. 407; Bird v. Benlisa, 142 U. S. 664, 12 Sup. Ct. 323; Smith v. Sherry, 54 Wis. 115, 11 N. W. Rep. 465; Wadleigh v. Bank, 58 Wis. 546, 17 N. W. Rep. 314; Gould v. Sullivan, 84 Wis. 659, 54 N. W. Rep. 1013; Case v. Albee, 28 Ia. 277; Powers v. Fuller, 30 Ia. 476; Wilson v. Crafts, 56 Ia. 450, 9 N. W. 333; Sheehy v. Hinds, 27 Minn. 259, 6 N. W. Rep. 781; Black, Tax Titles, § 498. An examination of the cases cited will disclose that, while they do not all relate to want of assessment, they do relate to some matter
The respondent bank also pleads a purchase of said south half under a sale thereof by the City of Fargo for a paving tax assessed in 1896, the sale being made in March, 1897, and a certificate in due form issued to the respondent bank. Section 2300, Rev. Codes, makes such certificate presumptive evidence of the regularity of all prior proceedings. The respondent bank introduced such certificate. Appellant makes three objections to this certificate. First, she claims — and introduced evidence on the point — that one of the city aldermen was interested in the paving contract under which this tax was assessed. Granting this to be true, it probably subjected such alderman to removal, under section 2136, Id.; but counsel cites no authority, nor do we know of any, holding that such fact invalidated the tax. We think it has no such effect. Counsel also claims that this paving law, under which assessments were made upon the front-foot plan, is unconstitutional, as depriving a person of his property without due process of law. In Rolph v. City of Fargo, 7 N. D. 640, 76 N. W. Rep. 242, this Court recently and upon full investigation held the contrary. Lastfy, counsel urges certain irregularities, but he introduced no evidence whatever relating thereto to overcome the presumption of regularity raised by the statute by the issuance of the tax sale certificate. It is true that the fee title to the entire lot was in appellant, and the pavement assessment was against the. south half of the lot. Ordinarily, a single lot, owned by one party, should be assessed as a unit. Black, Tax Titles, § 102 et seq. There was, however, at this time, a tax
Nor do we think the respondent bank entitled to any judgment against appellant for any taxes paid by O. P. Smith or by said respondent upon said south half after the purchase thereof at tax sale in 1889. Smith has assigned all his claims therefor to respondent. Under sections 1640, 1643, Comp. Laws 1887, and section 1273, Rev. Codes 1895, such judgments were permissible under certain circumstances. We discussed these provisions somewhat in Power v. Larabee, 2 N. D. 141, 151, 49 N. W. Rep. 724, and O’Neil v. Tyler, 3 N. D. 47, 53 N. W. Rep. 434. But, in so far as those statutes related to the remedy of the party who had paid subsequent taxes, they were entirely within legislative control, and have been superseded by section 88, Laws 1897. Under that section, where a sale of lands for taxes is adjudged to be void, but subsequent taxes have been paid by the purchaser, such party is in all cases relegated to his remedy against the county, and the taxes stand as a lien againsl the land, and the land must be sold therefor at the next ensuing tax sale.
We now proceed to consider the defense made by the respondent Hodgson. He claims title to the north half of said lot by virtue of several tax deeds. All the tax sales under which he claims, were made under the revenue law of 1890. In each of the years wherein it is claimed the taxes were delinquent said lot 20 had been assessed by the assessor as an entirety, and as the property of this appellant, while respondent Hodgson’s tax deeds are each for the north half of said lot, and based upon a sale of the north half for the taxes thereon. His first deed is dated June 16, 1895, and is based upon the sale in 1890 for the delinquent taxes of 1889.' This deed .is concededly void, and need not be further noticed. His second deed
Modified.
Concurrence Opinion
I concur in the conclusion and in the reasoning of the Chief Justice, as stated in the opinion of the Court, except that, in my opinion, the language of section 92, Ch. 132, Laws 1890, has no application to a case of an involuntary transfer of title to real estate by a tax proceeding. In my judgment, section 92 has reference only to such transfers as are made by agreement of parties.