73 N.W. 1083 | N.D. | 1897
Lead Opinion
From an order sustaining a demurx-er to four of plaintiff’s thirteen causes of action, this appeal is taken. Plaintiff is seeking to x-ecover certain sums of money paid by his assignor on tax sales, and for subsequent taxes paid in defense of his supposed tax title. He x-ests his right to restitution of this money upon the statute. Independently of the statute, the county would not be liable for moneys voluntax-ily paid to it fox-taxes under a mistake of law, whei'e no taxes wex'e due, nor could it be sued for money x-eceived by it on void tax sales. Budge v. City of Grand Forks, 1 N. D. 309, 47 N. W. Rep. 390; Tyler v. Cass Co., 1 N. D. 369, 48 N. W. Rep. 232. The statute under which plaintiff seeks to sustain his action is § 88 of Ch. 126, of the laws of 1897. It provides as follows: “When any sale of land for taxes is adjudged to be void, the judgment shall state the x-eason why it is void, and in all such cases, and in cases
The order sustaining the demurrer is affirmed.
Rehearing
The petition for rehearing is denied. Two of the very cases cited by counsel for plaintiff to sustain their contention are against them. They claim that, although the statute provides that the right to recover shall be dependent on the fact that the tax sale has been adjudged void by some court, nevertheless the cause of action accrues before this is done. The adjudication, it is urged, may be made in the very suit brought to recover the money paid on the tax sale. Waiving the question whether mandamus is not the proper remedy in cases of this kind, — see, on this point, State v. Norton, (Minn.) 61 N. W. Rep. 458, and Fleming v. Roverud, 30 Minn. 276, 15 N. W. Rep. 119,—it is apparent that the condition precedent prescribed by the statute must be performed before the right to recover the debt exists. When the tax sale has been adjudged void, then for the first time the right to commence proceedings against the county accrues. The Supreme Court of Minnesota, in one of the cases cited by counsel for plaintiff, distinctly recognizes the soundness of this view. The court, in State v. Norton, 61 N. W. Rep. 458, said: “It is true that relator’s right of action for refundment does not accrue until the judgment declaring the tax sale void is entered in the prior action.” And further along in the opinion the court said: “But the entry of this judgment is not merely a step in the remedy. It is a paid of the right, of a condition precedent in the contract, and no cause of action accrues until the condition happens.” Nor is there anything in the Minnesota decisions warranting the statement of counsel for plaintiff that the tax purchaser may bring a suit against the county for the purpose of having his purchase adjudged void. Doubtless, such purchaser is not bound to wait for the owner of the fee to sue. As soon as he obtains a deed, he may institute ejectment, or an action to determine adverse claims to the property, and in such action have the validity of his tax title passed upon. An adverse judgment in such an action would doubtless satisfy the statute. But no court has ever held that the statute vests in the tax pur