86 N.W. 118 | N.D. | 1901
In this action judgment was entered for the plaintiff in the Court below after a trial without jury. The defendant, Paine, alone appeals from said judgment to this Court, and in the statement of the case a trial anew is demanded in this Court of the entire case. The action is brought to foreclose a mortgage covering certain real estate situated in the county of Nelson, in this state, and
The defendant’s tax deed is regular upon its face, but the plaintiff claims that said deed is void for want of assessment; and in support of this contention the plaintiff put the assessment book for the year
But there is another defect in the assement of 1890 which is equally fatal. The land is situated in congressional township 150 of range 58, but this fact does not appear on the face of the assessment book, but is omitted therefrom. In the form or blank upon which the assessment is made there are columns headed “Township” and “Range,” but the same do not contain either figures or ditto marks. Opposite the name of the owner of the lands in question the spaces in said columns are blank. At the top of the column, under the word “Township,” “150” is written' in figures; and, under the word “Range,” “58” is written in figures. Below these figures ditto marks are made against all descriptions of land, down to and including the description next preceding said name of Andrew Lewis. There is a blank space next above the name of Lewis, in which there are neither figures nor ditto marks, indicating either town or range; and, as we have said, the same omission occurs opposite the name of Lewis. It is impossible, therefore, to determine by an inspection of this assessment either town or range in which the lands in question are situated. The assessment shows possibly that Andrew Lewis owns lands in sections 18 and 19 in Nelson county, but it wholly fails to identify the particular sections, because, as has been shown, the town and range being omitted, the particular sections cannot be located by any data furnished by the assessor. To cure this glaring omission in the assessment, the defendant, against objection, introduced oral evidence tending to show that the lands opposite the name of Andrew Lewis were in fact located in congressional township numbered 150 of range 58. This evidence was wholly incompetent to supply a radical defect in description in an assessment. An assessment of land is required to be written in a public record, and all subsequent steps in the process of laying the tax relate back to such written description. This rule is no longer open to debate in the courts of this state. In Power v. Bowdle, supra, this Court said: “There can be no such thing as a parol assessment of land. The law requires a definite record, and no other evidence of the assessment
Taxes were again charged against the lands, based upon an alleged assessment of 1892, upon which a sale was made in 1893. The. defendant redeemed the lands from such sale, and now asks that the sum paid to make such redemption be charged as a lien upon the lands superior to plaintiff’s mortgage. But the defendant had no right to make such redemption or to pay such taxes, other than the rights which he acquired under the tax deed and tax certificate which have been considered and held to be worthless. The defendant therefore was, as to these lands, a mere volunteer. He may have paid the'taxes and redeemed the land in good faith, but this does not change his legal relation to the land; nor does such good-faith payment enable the Court in this action to fasten a lien upon the lands superior to the plaintiff’s mortgage lien. Defendant’s remedy, if any, is against the county. See Roberts v. Bank, 8 N. D. 504, 79 N. W. 1049; McHenry v. Bret, 9 N. D. 68, 81 N. W. 65. The defendant offered a tax receipt in evidence given by the county treasurer for taxes on the land for the year 1894. The evidence was objected to and was incompetent for the reasons and upon the grounds last above set out. Such taxes were paid by a stranger to the land.
The lands were ag'ain struck off to defendant at a tax sale m the year 1896 for the taxes charged against them in 1895, and the certificate of sale was put in evidence, and defendant claims that the certificate operates as a lien superior to plaintiff’s, mortgage. The taxes of 1895 were levied upon an assessment made in 1894. The assess- or’s book for 1894 was put in evidence, and it shows that the attempted description of the land found there omits to state or show,
Again, the lands were struck off to the defendant for taxes attempted to be assessed against them in the year 1896. This certificate is in evidence, and defendant claims that it constitutes a lien upon the lands. But the assessment in 1896 is defective and void for the same reason last aboye stated; viz: that the assessor, in attempting to describe the lands in the assessment book of 1896, omitted to state in any manner the township or range in which they are located. The assessment is therefore void for want of a proper description of the lands. The certificate must fall with the assessment.
Defendant paid the tax of 1898, but in doing so he was a volunteer; and, upon the authority already cited, he can gain no rights by a volunteer payment of taxes.
Our conclusion is that the defendant did not acquire either a title to or a lien upon the land by reason of the tax deed or the tax certificates or tax receipts put in evidence. The judgment of the trial court must be affirmed.