109 N.W. 357 | N.D. | 1906
Lead Opinion
This case is here for trial de novo of all the issues pursuant to an appeal by defendants. Plaintiff, claiming to be the owner in fee, brought this action in statutory form to determine adverse claims. Defendants, Valeria R. Myers and William ■H. Beck, answered separately, each claiming title under certain tax deeds and liens under tax-sale certificates. Plaintiff claims title through a deed executed and delivered to it by one Kindred shortly before this action was commenced; and it is admitted that Kindred was, when he executed it, the owner of the land unless his title had been divested by certain tax sales hereinafter mentioned. Counsel for defendants contend that the deed under which the plaintiff claims title is void under Galbraith v. Payne, 12 N. D. 164, 96 N. W. 258. It is asserted that the plaintiff’s grantor had not taken rents for one year prior to the execution of the deed, and that the land was in the adverse possession of the defendant Beck. The facts do not sustain this contention. The land was wild, uncultivated prairie, without improvement of any kind whatever. Plaintiff’s grantor was a nonresident. In 1901, 1902 and 1903 his local agent at Jamestown sold to one Jennings the privilege of cutting the hay, and the latter, under this privilege, went upon the land and cut the hay in the seasons of 1901, 1902 and 1903, and removed it to his own farm. The hay was not stacked upon the premises, and he made no improvements of any kind. It took about 10 days to -cut and remove the hay. Plaintiff’s agent went over the land before completing the purchase. Pie saw no evidence of possession, and testified that he did not know that the hay had been cut by Jennings until he heard the latter’s testimony to that fact. To constitute a disseisin of the owner of uncultivated or wild land by entry and occupation, the occupation must be of that nature and notoriety- that the owner might be presumed to know that there was a possession of the land. A mere occasional entry to cut grass is not of that nature, and so it has been held. Washburn v. Cutter, 17 Minn. 361 (Gil. 335); Bazille v. Murray, 40 Minn. 48, 51, 41 N. W. 238; Lambert v. Stees, 47 Minn. 141, 49 N. W. 662. See, also, Bump v. Butler County (C. C.) 93 Fed. 290, 300; Buswell on Limitations & Adverse Posses
The action involves the title to three distinct tracts of land: The N. E. % of the N. W. %. of section 13, township 139, range 63; the W. of the S. E. % of the same section; and the W. of the E. yi of section 25 in the same township. The first two tracts above described were assessed and faxed as a single tract although they were 80 rods apart. There was consequently no assessment of either tract, and hence there is nothing which can be held to be a tax either in law or equity. The invalidity of the proceedings as to these two tracts was apparent on the face of the certificates and deeds. The irregularity is fatal not only to the tax sales, but also to the tax itself. Roberts v. Bank, 8 N. D. 504, 79 N. W. 1049. The judgment and sale under the “Woods Law” (chapter 67, p. 76, Laws 1897), does not avail anything because the same irregularity exists in that proceeding. The citation, judgment and certificate all included the two distinct tracts under a single description. That law required each distinct tract to be separately described. Section 1331, Rev. Codes 1899. Although, under section 1339 the list of delinquent taxes filed with the clerk of court is prima facie evidence of the validity of the taxes listed, yet it is obvious it could not have that effect where the list disclosed the incurable illegality of the charge. A court of equity cannot impose as a condition of relief in this form of action the payment of the amount justly due when, as in this case, the inherent essentials to the existence of an assessment and tax are lacking. With respect to the W. of the E. of section 25 defendant Beck claims title by virtue of a sale on November 21, 1898, pursuant to the “Woods Law.” The certificate is in the same form as that considered in Nind v. Myers (just decided) 109 N. W. 335; and is valid on its face for the reasons there stated. Following the decision in that case we hold that, by reason of the limition provisions of section 15 of that law (section 1345, Rev. Codes 1899), the validity of the sale cannot now be questioned, and the certificate has become conclusive evidence of a valid sale. In this case, however, the land was sufficiently described in the citation published by the clerk of court, and a judgment in proper form was duly rendered.
The tax deed to Beck, dated December 17, 1898, based on a tax sale in 1895 for the taxes of 1894 is void’ on its face because it names the county of Stutsman as grantor instead of the State of North Dakota. Beggs v. Paine, 109 N. W. 322. The deed, therefore, proves nothing but its own execution, and its defects were specifically pointed out by proper objection. The defendant failed to offer any proof of a tax-sale certificate or tax sale, and he must bear the consequences of his own error. The reasons for ordering a new trial in Beggs v. Paine, in a case of absence of proof, do not exist in this case. It must be held that the defendant has no claim based on the tax sale of 1895 of the particular tract in question. In the absence of any evidence of a tax sale, we cannot
The tax sale to Beck dated January 11, 1901, based on a tax sale in 1897, for the tax of 1895, is void on its face for the same reason that the preceding deed was void. It is conceded that the sale was void because the notice of sale was insufficient. There were certain irregularities in the antecedent tax proceedings, but all of them were merely irregularities in the performance of purely legislative requirements. Nothing was omitted that was inherently or constitutionally essential to the creation of a tax. In a court of equity such a tax is not wholly void even though the irregularity may be fatal to the sale. It is not shown that the tax was excessive or lacking in uniformity or otherwise unjust. No reason is assigned why the plaintiff should in equity be relieved from the payment of any portion of the tax. The plaintiff is not entitled to any equitable relief with respect to this sale until he does equity. Here is a tax which he ought to have paid. If he had done his duty by paying this just tax in proper season no sale would have been made. The county is a guarantor of the validity of the sale, and if the sale is held void, the public treasury must return the money received at the sale to the purchaser, with 7 per cent interest. If the land owner had made his objections to the sale promptly, several years of interest would have been saved to the county, and the tax could have been promptly collected. Shall the taxpaying members of the community be compelled by a court of equity to bear, the burden of increased taxation due to this landowner’s refusal or failure to pay a just tax? It is no answer to say that he had the legal right to refuse payment so long as the proceedings were not in accordance with the statute. The statutory regulations which have not been strictly observed in this case were designed to insure the taxpayer ample protection against injustice or infringement of his constitutional right; and to afford him ample remedies for prompt redress in case he was wronged. Whether the statutory regulations were observed or not, in this instance, no injustice has been done the plaintiff. The rights which the statute was designed to protect have not been violated. The3>- were not intended to be used as a means of evading his duties to the government, and of doing injustice to his neighbors.
We recognize the fact that this decision is in conflict with the practice heretofore prevailing as established by the decisions of this. court. Those decisions were cited in Douglas v. City of Fargo, 13 N. D. 467, 101 N. W. 919. It is true, as pointed out in that case, that there is a distinction between a suit for cancellation against the county, such as that, and an action to quiet title, such as this. The difference is only in form, however. Both invoke the equity jurisdiction of the court for the same purpose, namely, the cancellation of an adverse claim. The inherent powers of the court as an equity tribunal and the general principles governing the court in equity cases are precisely the same in whatever form the questions are presented. The legislature can devise remedies and rules of procedure, but it cannot deprive the court of its constitutional jurisdiction to grant equitable relief on equitable conditions. We do not think there is anything in the statute relating to this form of action which was intended to do so. It merely prescribes the manner in which the issues may be brought before the court. It does not restrict the exercise by
By overturning the precedents on this question established by former decisions, we do not in any way disturb the rules by which the validity of past or future tax sales are to be tested. We disturb no rights which are justly entitled to protection. It surely cannot be claimed that those who have neglected to pay their just taxes are in any position to invoke the doctrine of stare decisis to continued immunity from their obligation to do equity when they seek equitable relief. We are satisfied that public policy necessitates this modification of former decisions, and it is further justified by the fact that it restores in this state the rule recognized and applied in other jurisdictions. In addition to the cases cited in
The judgment will be reversed, and the cause remanded, with directions to enter judgment in accordance with this opinion. Appellant Beck will recover the taxable costs and disbursements of both courts from respondent.
Dissenting Opinion
(dissenting in part). The following conclusions announced in the above opinion do not meet my approval: (1) That
As to the remaining questions I agree with the conclusions stated in the syllabus. My views upon the first three questions are set forth in a dissenting opinion in Nind v. Myers, and in Beggs v. Paine (filed herewith), 109 N. W. 322, and need not be repeated
As to the fourth question, I am of opinion that the sale by the sheriff without the certified copy of the judgment was a sale without authority of law and was void, and was not a mere irregularity, as the majority hold. It cannot be said .that a sale without authority of law is not a sale without jurisdiction. Section 1341, Rev. Codes 1899 (section 11, c. 67, p. 82, Laws 1897) required the clerk of the district court, after the entry of the judgment, to deliver to the sheriff “a certified copy of such judgment written on the left-hand page of a book to be prepared by the treasurer.” This certified copy of the judgment is the sheriff’s authority to sell. It is his precept, and performs the same office as an execution on an ordinary judgment. The subsequent proceedings are required to be recorded upon it, and the copy is returned to the clerk of the district court. Section 1346. In my opinion, the case is not different from that in which a sheriff seizes and sells property without an execution. There being no authority of law for him to proceed in that way, his act is void. The execution is the authority for his act and without it he is without authority. The same principle should be applied when an officer attempts to sell lands for taxes. If he does not have the precept, he is without authority, „ and the sale is void. The following cases sustain this view: Atkins v. Hinman, 2 Gilman (Ill.) 437-448; Williams v. Underhill, 58 Ill. 137, 138; Eagan v. Connelly, 107 Ill. 458-465; Little v. Herndon, 10 Wall. (U. S.) 26, 19 L. Ed. 878; People v. Doe. 31 Cal. 220; Gilbreath v. Dilday, 152 Ill. 207, 38 N. E. 572. The sheriff’s authority was special. It existed only to the extent and under the circumstances stated in the statutes. If he acted without the authority of the statute, his acts are not justified or sustained by it.
It is well settled that “the power to sell lands for taxes is a naked power, and the validity of a title derived from such a sale depends upon a strict compliance with the directions of the statute. The officer intrusted with the power of sale exercises a naked statutory and special authority, depending upon the letter of the law for its support. He must act in conformity with the law from which his power is derived; and a purchaser at such a sale is bound to know whether he has so acted. It is therefore a condition precedent to the passing of titles at such sales that all proceedings of the officers who have anything to do with the assessment and collection of the taxes or with the advertisement and sale of the property shall be in compliance with the statute authorizing the sale.” Woodbridge v. State, 43 N. J. Law, 262, 270, and cases cited; also, Hopper v. Ex’rs, 16 N. J. Eq. 382; and the opinion of Chief Justice Marshall in the leading case of Williams v. Peyton, 4 Wheat. (U. S.) 77, 4 L. Ed. 518, and Early v. Doe, 16 How. (U. S.) 609, 14 L. Ed. 1079.
In my opinion there is shown an absence of authority in the-sheriff to make the sale in question. And it is quite clear that authority to sell is not supplied by the curative or limitation provision of section 1345, to which the majority opinion refers. Such statutes, when applicable, cure irregularities and omissions in proceedings which are being taken by authority. But there is no ground for claiming.-that they give the officer authority in addition to that contained in the statute, under which he assumes to act. This must be so, for if the officer may choose his own method of procedure, or, as in this case, decide to sell without the certified copy, and thus without the authority of the statute, he is assuming to exercise legislative power which cannot be delegated. Plis authority to act is created by the legislature, and exists only upon the conditions named by the statute and he cannot create it himself. The fact that the legislature might have authorized him to sell upon different conditions proves nothing. It is a sufficient answer to this to say that it did not do so. The landowner can only be deprived of his property by due process of law, and he is not' deprived of his property by any law, when it is not taken under the authority of a law in existence, hut merely by a method of procedure which the legislature could have authorized if it had seen fit to do so.
For this reason I am of the opinion that the sale was made without jurisdiction, and should be held void.