Power v. Larabee

49 N.W. 724, 2 N.D. 141, 1891 N.D. LEXIS 36

• Court: North Dakota Supreme Court
• Decided: August 1, 1891
• Status: Published

Opinions

The opinion of the court was delivered by

Wallin, J.

This is an action to quiet title, brought under § 5449, Comp. Laws. The complaint alleges in effect that the plaintiff is the owner in fee-simple of certain lands described in complaint, situated in the County of Barnes; that defendant claims an interest in the land adverse to plaintiff, and asks that such adverse claim of the defendant be determined and adjudged to be void. The defendant’s answer denies plaintiff’s ownership and alleges ownership in himself, and as an affirmative defense states in substance that on the 3d day of October, 1887, the lands were sold to the defendant for the taxes assessed upon them for the year 1886; that in pursuance of such sale the county treasurer of said county of Barnes issued a tax certificate therefor, and subsequently, to-wit, m October, 1889, said county treasurer executed and delivered a tax deed thereof to tne defendant. A copy of such deed is annexed to and made a part of defendant’s answer. The answer further states that defendant paid out at said tax sale as taxes and for said tax certificates, a certain sum, and subsequently, in February, 1888, defendant paid out a certain other sum as and for the taxes on said lands for the year 1887; and later, to-wit, in June, 1888, paid the taxes on the land for 1888; and that all of said sums were paid prior to the commencement of this action. Defendant further charges “that plaintiff has made no tender to the defendant of the several or diverse sums of money so paid by him for taxes as before set forth, nor has the plaintiff paid the same, as provided in § 75, c. 28, Pol. Code of this state, and prayed that the action be dismissed. Plaintiff served reply to the answer, alleging in detail certain irregularities in the tax. proceedings in Barnes county for the years 1886, 1887 and. 1888, viz, irregularities in the assessment, equalization, and levy of all of said taxes; also certain irregularities in the sale and return made by the treasurer in 1887, and upon which said certificates and tax deed were made and delivered, as above stated. Plaintiff claimed that by reason of the alleged irregularities set out in the reply said tax deed and all of said taxes and tax proceedings are absolutely void. The trial court found all of the alleged irregularities to be true in fact, and certain of them will be referred to hereafter. The case was tried by the court, and there were voluminous findings of fact, but it will be unnecessary to set out any of the findings except the following: “On the trial of the case the defendant abandoned the claim that by the tax sale he had become the owner in fee of the land, or had any further interest therein except a lien for the taxes which he had paid and interest.” “That the tax deed set forth in the answer is a true copy of the deed made to defendant by the treasurer of Barnes county.” That in the assessment roll and tax list of Barnes county for the years 1886,1887 and 1888, said lands were only described as follows:

Description. Section. Township. Range.

W. 2 of W. 2 7 143 57

E. 2 of E. 2 13 143 58

W. 2 of S. E. 15 138 58

N. 2 N. W. 3 139 58

—The court finds' in substance that the county commissioners of Barnes county did not in either of said years meet as a board of equalization commencing on the first Monday or the first Tuesday of July, and did not meet in the year 1886 until “Thursday, the 8th day of July, 1886.” The court, at the defendant’s request, found the following as additional findings: “At the time of the assessment, levy, and sale for the taxes of 1886, the plaintiff was the owner in fee of the lands mentioned in the complaint.” “The said lands were assessed for taxes by the proper officer in the year 1886. The plaintiff has never paid taxes on said lands for the year 1886. Said lands were sold for the delinquent taxes for the year 1886 by the proper officer on the 3d day of October, 1887, and were bid in by the defendant, or his agent, for the sum of $49.85, which was the amount of taxes, interest, penalty and costs of sale, including fifty cents for the certificate of sale.” The court also found that “to protect his interest in said lands arising out of said tax sale” defendant paid the taxes, as alleged, for the years 1887 and 1888, and that none of the taxes paid by defendant have ever been repaid or tendered by the plaintiff. The trial court found the following conclusions of law: “And as a conclusion of law the court finds that the sale of said lands and the deed under which defendant claims title is void, and that the same ought to be adjudged void; and that defendant and all persons claiming under him since the commencement of this action, be barred of any light, title or interest in said land, and enjoined and perpetually restrained from asserting title thereto under said tax sale or deed; and that defendant is entitled to have and recover of plaintiff his costs and disbursements. That the plaintiff ought to pay to defendant the amount which he paid for taxes for the years 1886, 1887 and 1888, with interest thereon at 30 per cent, per annum up to the time, for the issuing of tax deeds, and thereafter at 7 per cent, per annum; and that, upon payment to defendant or into court for the use of defendant, the sum of $217.83, and the further sum of' $-, the costs of defendant, to be taxed, the plaintff should have his decree adjuging and decreeing that defendant has no right, title or interest in or to said lands or any part thereof.” Upon theBe findings the district court entered a judgment which conforms in substance to the conclusions of law heretofore set out.

The errors assigned here are in brief that the trial court erred in its conclusions of law based on the facts contained in the findings of fact in this, that the trial court awarded judgment in favor of the plaintiff only on condition that plaintiff should' advance and pay defendant’s costs of suit; also the sums paid by defendant at the tax sale for the lands, and the sums paid subsequently by defendant as taxes for 1887 and 1888. At the trial defendant abandoned all claim of title to the land which he had alleged in his answer and based upon the tax sale of 1887 and the deed delivered him by the county treasurer in pursuance of such sale; and hence the trial court could not well do otherwise than find as it did, as a conclusion of law, “ that the sale of said land and deed under which defendant claims title is void.” The court below does not anywhere state on what particular grounds it bases its conclusion that the tax sale and deed are void, but an examination of the findings of fact, as above set out, furnishes abundant vindication of the conclusion of law as one proper to be made in the case. We find no difficulty in reaching the conclusion from the record that none of the alleged taxes had any legal validity or inception whatever, and that consequently, the tax sale and deed were wholly inoperative as a means of transferring title to the land from the plaintiff to the defendant; and this on account of fundamental defects which go to the groundwork of the alleged taxes. While it is true that the trial court in one of its additional findings states, “said lands were assessed for taxes by the proper officer in the year 1886,” yet this general conclusion of the court is practically annulled by another specific finding of fact in which the court declares in substance that said lands were only described in the assessment roll and tax list of said county in the years 1886, 1887 and 1888, in manner and form as detailed in the finding, which, finding we have already quoted. We hold that the alleged description is wholly insufficient as a description of the lands in question, or of any lands, and that it cannot be sustained as a means of identifying the lands for purposes of assessment for taxation, or for the ulterior purpose of transferring, the title of the reality from the general owner to the tax title holder and his successors in interest. The alleged description is neither written out in words nor is the same expressed by characters or abreviations commonly used by conveyancers, or generally understood and used by the people at large in describing land. The description of realty placed in an assessment roll is the means of identifying or describing the land for all the subsequent steps in the process of taxation and sale, if'a sale is made. The official who makes the tax list and duplicate, and the official who collects the tax, or sells and conveys the land, or certifies to its redemption from sale, are governed by the original description in the roll and are not authorized by law to change the same. It follows that the description of' realty in the assessment roll in order to be legally sufficient, must be reasonably full and accurate, though it need not be technically nice and scientifically exact. This view has the support of much authority and we shall adopt it as the safer rule, and be governed by it in this case. Subject to this test, it is unnecessary to say that the pretended description in the assessment roll and lists in question were wholly insufficient. Keith v. Hayden, 26 Minn. 212, 2 N. W. Rep. 495 ; Williams v. Land Co., 32 Minn. 440, 21 N. W. Rep. 550 ; Black, Tax Titles, § 38 ; Cooley, Tax’n, 404. The description in the tax deed is governed by that in the assessment list. Turney v. Yeoman, 16 Ohio, 26 ; Kipp v. Fernhold, 37 Minn. 132, 33 N. W. Rep. 697 ; Bower v. O’Donnall, 29 Minn. 135, 12 N. W. Rep. 352; People v. Cone, 48 Cal. 427, also 431; People v. Mahoney, 55 Cal. 286. The lands referred to in the complaint never having been described in the assessment roll or tax list for the years 1886, 1887 and 1888, it follows necessarily and legally that no tax whatever was assessed against said lands in those years, and also follows that the treasurer of Barnes county had no authority or jurisdiction to sell the lands on account of the alleged tax of 1886. It is axiomatic that no tax can be laid, under a statute which requires a tax to be laid upon the value, until the value is officially ascertained and declared substantially in the manner the law points out. In other words under our general revenue system there can be no tax upon any piece of land until it is assessed and valued officially, and in substantial compliance with the requirements of the statute which regulates assessments. The process of assessment as it relates to realty is pointed out by statute and is briefly as follows; First, the land must be described by separate tracts in lists furnished for the use of the assessor; second, the assessor must view the land and reach a conclusion in his own mind as to its value ; third, the assessor is required to write out opposite each tract in the roll the value as he ascertained it to be, and, finally, the assessor is required to swear to the assessment thus made, and annex the proper affidavit to the roll, and then return it to the county clerk or auditor. It is obvious that the whole of this process depends vitally upon the primary act of describing the land. Without a description in writing followed by a valuation stated in writing there can be no assessment of land under the law; and, as before stated there can be no tax without a valid assessment. 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 is competent. Sections 4, 5, c. 28, Pol. Code, (Comp. Laws, § 1544 et seq.); Welty, Assessm. § 4; Black, Tax Titles, § 27. The city tax was held void by this court on the ground of an invalid assessment in Farrington v. Investment Co., 1 N. D. 102, 45 N. W. Rep. 191. See, also, Cooley, Tax’n. 339; Burroughs, Tax’n, 211.

The record also discloses another irregularity in the tax proceedings in question, which, in our opinion, is jurisdictional, and fatal to all of the alleged taxes. It appears that the board of equalization for Barnes county did not, as the law requires, in either of said years assemble on the first Monday in July, nor upon the following day. Whether it assumed to assemble at all in those years is wholly immaterial. Failing to meet at the time designated or upon the following day — a two-day session being prescribed by statute — the county board were without power to assemble and hold a pretended session as a board of equalization in the same years. The law names the date of the meeting, and the public is chargeable with notice of a meeting on the day named in the law; but there is no notice to the public of any session of the board which meets neither at the time stated nor at an adjourned day named as a lawful meeting. Under the system which obtained at the time in question, our revenue laws did not afford an opportunity to the taxpayer to be heard by any officer or board touching the assessment to be made against his property, except at a public session of the county board sitting as a board of review and equalization, at the time and place named by the statute. But if no such session is had in any given year, then no opportunity is given that year to the taxpayer to be heard, and hence any so called “ taxes ” which may be exacted by the officers under color of law are mere arbitrary burdens upon the taxpayer. This is not “ due process of law ” within the meaning of any system of taxation which expressly authorizes and provides that the taxpayer may have a hearing upon the question of the valuation to be placed upon his property for taxation purposes. It is no answer to this to state that it does not appear that the plaintiff was injured by the non-assembly of the board at the time designated. From grave considerations of public policy the law will presume an injury. Sections 28, 29, Pol. Code (Comp. Laws, §§ 1584,1585;) Black, Tax Titles, § 42; Maxwell v. Paine, 53 Mich. 30, 18 N. W. Rep. 546; Welty, Assem. § 154a, San Mateo Co. v. Southern Pac. R. Co., 8 Sawy. 270, 13 Fed. Rep. 722; Cooley, Tax’n (2d Ed.) p. 751; 1 Desty, Tax’n, 592 ; Commissioners v. Nettleton, 22 Minn. 356. In the case of Farrington v. Investment Co., 1 N. D. 102, 45 N. W. Rep. 191, a majority of this court held that where the plaintiff had appeared before the county board while it was sitting and acting as a board of equalization, and while there presented a petition to the board, and was accorded a hearing upon the subject-matter of the valuation to be placed upon certain lands of the plaintiff, the plaintiff was not in a position to come into a court of equity and pray for relief upon the ground that the session was not a lawful session. Under the circumstances existing in that case, the court declined to go into the question of the legality of the session of the board which the plaintiff was then assailing; but no such facts exist in the case under consideration. We believe that the views which we have taken of the rights of taxpayers and the limitations which the law has placed upon the arbitrary as well as the careless conduct of officials who are charged with the responsibility of raising the revenue for public purposes are highly important and salutary, and that they have the support of the decided weight of authority. It follows from what we have said that the alleged taxes for which plaintiff’s lands were sold to defendant, and those subsequently paid voluntarily by the defendant were illegal, and absolutely void, for the reasons already detailed. This fact appearing, the plaintiff was manifestly entitled, under the law and the issues made by plaintiff’s reply to the answer, to have defendant’s tax deed declared null and void.

Section 75, c. 28, Pol. Code (Comp. Laws, § 1640), has given the courts and the bar much trouble in their attempts to ascertain its proper construction; but of one thing we are clear, and that is that the legislature never intended by this section that mere arbitrary sums exacted by the taxing officers and miscalled “ taxes,” but which were never lawfully assessed against the land, should be tendered or paid as a condition precedent to bringing suit to quiet title. We think the contrary view would result in rendering the section unconstitutional, because such a construction would involve the taking, of the taxpayer’s property without due process of law. Black, Tax Titles, § 229; Philleo v. Hiles, 42 Wis. 527; Tierney v. Lumbering Co., 47 Wis., 248, 2 N. W. Rep. 289. It follows that it was error in the trial court to require the plaintiff to tender or pay into the court the sum of $217.84, which defendant had paid out at the tax sale of the land and as subsequent taxes thereon, as a condition upon which plaintiff could enter judgment setting aside the worthless tax deed as a cloud upon his title. It is in a broad sense a moral obligation resting upon every taxpayer to pay a fair and equal tax upon his property. Such obligation, however, does not become legal and enforceable in the courts unless the tax is a substantially legal one. Barber v. Evans, 27 , 6 N. W. Bep. 445. It results from, what has been stated that the judgment of the court below must be so modified as to grant the relief demanded by the complaint unconditionally, plaintiff to have and recover costs and disbursements in this court. Such will be the order.

Corliss, 0. J., concurs.