Kelsch v. Miller

15 N.W.2d 433, 73 N.D. 405, 155 A.L.R. 1186, 1944 N.D. LEXIS 76
CourtNorth Dakota Supreme Court
DecidedAugust 4, 1944
DocketFile No. 6899
StatusPublished
Cited by17 cases

This text of 15 N.W.2d 433 (Kelsch v. Miller) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelsch v. Miller, 15 N.W.2d 433, 73 N.D. 405, 155 A.L.R. 1186, 1944 N.D. LEXIS 76 (N.D. 1944).

Opinions

Christianson, J.

The plaintiff brought this action to determine adverse claims to certain land in Stark County in this state. In the complaint it is alleged that the plaintiff is the owner in fee simple of the tract in question. The defendant answered alleging that the land was sold on December 10, 1935, for the nonpayment of taxes for the year 1934, at the sale appointed by law to be held for the sale of such lands; that at such sale the premises were bid in by Stark County; that thereafter Notice of Expiration of Period of Pedemption was duly given, as required by law, but that no redemption was made, and that *407 thereupon on November 18, 1940, a tax deed was duly issued to the county, and recorded in the office of tbe Register of Deeds of tbe county. Tbat thereafter said Stark County, at a sale held according to law, sold said premises to tbe defendant, John M. Miller.

It is further alleged tbat if tbe plaintiff acquired or has a deed to tbe lands in question, tbat tbe same was acquired by her after tbe former owner bad been divested of title by tbe tax deed issued to tbe county.

Defendant asks judgment tbat tbe plaintiff be decreed to have no right, title, or interest in tbe land and tbat tbe defendant be decreed to be tbe owner thereof, subject to the interests of Stark County for payments still due on tbe purchase price.

Tbe case was tried to tbe court without a jury and resulted in findings and judgment in favor of tbe defendant and tbe plaintiff has appealed.

Tbe appellant has limited tbe questions sought to be reviewed on appeal to tbe sufficiency of tbe Notice of Expiration of Period of Redemption. In her brief, tbe plaintiff says tbat tbe notice is fatally defective in tbe following particulars:

“1. Tbe time when redemption expires is not stated definitely; date of redemption is vague and confusing.
“2. Tbe total amount specified in tbe Notice is much greater than tbe amount necessary to redeem; it includes an amount of Eour Hundred Seventy-seven and 5/100ths Dollars ($477.05) to be paid for land which is not described in tbe Notice.”
3. Tbat if tbe court bolds there is land described in tbe notice “on which taxes are Four Hundred Seventy-seven and 5/i00ths Dollars ($477.05) then same is void because no more than one year’s taxes can be incorporated in any one Notice.”

These objections to tbe notice will be considered in tbe order stated.

(1) Our laws provided for two notices of Expiration of Period of Redemption on land sold to a county at .tax sale. 1925 Supplement, § 2202; Laws 1939, chap. 235. One notice was required to be given (1) to tbe record title owner, (2) to tbe person in possession of tbe land, and (3) to mortgagees, lien holders and other persons interested in tbe land as may appear from tbe records of tbe Register of Deeds *408 and Clerk of District Court for tbe county. Service of such notice was required to be made upon those to whom notice was required to be given in the manner prescribed by statute. 1925 Supplement, § 2202; Laws 1939, chap. 235, subd (3). The other was a general notice as to all tracts of real estate, on which the Period of Redemption was about to expire. This notice was given by publication only in the official newspaper of the county. 1925 Supplement, § 2202; Laws 1939, chap. 235, subd (4), (5). The notice, the sufficiency of which is challenged in this case, is the one required to be given to the record title owner. The original notice, which was offered in evidence, together with the proof of service, shows that the notice was issued May 13, 1940, and was served by registered mail as prescribed by statute by mailing on May 15, 1940.

The notice states that the real estate thereinafter described “was, at the tax sale held in this County on the 10 day of December, 1935,-of-fered for sale for delinquent taxes against it for the year 1934 and was sold to the county, and subsequent tax sale certificates have been issued to the county for the years hereinafter set forth; that more than three years have expired from the date of each of said tax sale certificates, that no redemption has been made therefrom, and that the same are still the property of such county, and unless redemption is made from each of said tax sale certificates on or before the first day of October, after the date of this notice appearing above my signature, tax deed will be issued to the county, granting to and vesting in it absolute title in fee to said real property, and foreclosing all rights of redemption, and any and all other rights of the owner and of all mortgagees and lien holders and other persons interested therein as may appear from the records of the Register of Deeds and Clerk of the District Court of said county, except the right of redemption granted by chapter 238, Sess Laws 1939.”

The statute relating to such Notice of Expiration of Period of Redemption says that the notice “shall contain the information indicated in the following form and may be substantially in the following form.” The form of notice set forth in the statute did not contain the last clause in the above quoted portion of the notice that was given in this case; that is, the form of notice as given in the statute did not contain *409 the clause “except the right of redemption granted by chapter 238, Sess Laws 1939.”

It is the claim of the appellant that the addition of this clause rendered the notice uncertain and indefinite as to the time within which redemption must be made and hence, the notice was void.

Chapter 238, Laws 1939, to which reference is made in the notice, was entitled: “An act providing for the redemption of real estate forfeited to the county for delinquent taxes by former owners, prescribing the conditions therefor, providing for the repurchase of real estate forfeited to the county for delinquent taxes on contract for deed, prescribing the terms therefor, and declaring an emergency.”

Section 1 of the act provides: “Any real estate heretofore or hereafter forfeited to the county under tax deed proceedings, shall be subject to redemption by the owner whose title was forfeited, or his successor in interest, at any time while the tax title thereto remains in such county and prior to resale, upon the payment of the amount which would have been required to effect a redemption had no tax deed been issued thereon, plus interest at the rate of four (1%) per cent per annum, from the date of the execution of such tax deed; provided that such right of redemption shall not interfere with the existing right of the county to re-sell real estate acquired by tax deed at any time as otherwise provided by law. Where a redemption is made under this act, the county auditor shall execute a quit claim deed in behalf of the county for such real estate to the person making such redemption.”

Subsequent provisions in the act empower the board of county commissioners “to enter into a contract for deed for the resale to the former owner, or his successor in interest, of any real estate which had been forfeited to the county on tax deed proceedings.”

The notice here left no doubt as to the time the period of redemption would expire, or what the result would be if redemption were not made within the time specified.

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Bluebook (online)
15 N.W.2d 433, 73 N.D. 405, 155 A.L.R. 1186, 1944 N.D. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelsch-v-miller-nd-1944.