Before proceeding with the trial of this case the plaintiff moved the trial court to require the defendant to deposit in court a sum equal to the amount that plaintiff had paid to the County for its tax title together with an additional sum for costs to be fixed by the court. This motion rested upon § 21, chapter 286, Laws of 1941, ND Rev Code § 57-4510, which reads as follows: "Whenever any action at law or in equity is brought to test the validity of any deed issued and delivered by the county to the purchaser of lands acquired through tax deed proceedings, the court shall not proceed with the trial of such action until the party assailing the validity of such deed, within the time required by the court, shall deposit with the clerk *Page 621 thereof, for the benefit of the party claiming title under such deed, an amount equal to the sum paid by such party to the county for the purchase of the property covered by such deed, together with an amount sufficient to pay defendant's statutory costs of the action, to be determined by the order of the court."
The defendant resisted the motion upon the ground that the above section was repugnant to the state constitution. The trial court in effect overruled the motion but required the defendant to deposit in court a sum equal to the amount of the taxes delinquent at the time the county acquired title.
I am satisfied that any attack which challenges the title purported to be conveyed by the county's deed to the purchaser of land acquired through tax proceedings is an attack upon the validity of that deed. "An official sale, an order, judgment, or decree may be regular. The whole practice in reference to its entry may be correct, but still invalid for reasons going behind the regularity of its forms. But when we say a judgment, decree, or sale is valid, it fully excludes the idea that it is void for any reason." Sharpleigh v. Surdam (CC) 1 Flipp 472, Fed Cas No. 12,711.
Without taking further exception the plaintiff went to trial on the merits. This act is considered by the majority of the court to be a waiver of the right to specify the ruling of the trial court upon this motion as error on appeal. I do not agree.
In this case the amount paid by the plaintiff for the land was more than the amount of the delinquent taxes and in substituting the amount of the taxes as the measure of defendant's deposit, the trial court denied the plaintiff a substantial right, if the statute is constitutional.
ND Rev Code § 28-1802 provides:
"In all trials in the district court and county court of increased jurisdiction the following matters shall be deemed excepted to:
1. . . . .
2. . . . .
3. An interlocutory order or decision finally determining the rights of the parties or some of them; . . . ."
I think plaintiff protected his record adequately by affirmatively seeking his rights under the statute, that the order denying him the *Page 622 full protection thereof is deemed excepted to by the provisions of § 28-1802, supra, and that we should consider the specification that this order was error. However, a majority of the court has held otherwise and under the rule adopted I agree with the disposition of the case.