Plaintiff has petitioned for a rehearing. In such petition exception is taken to the following statement in the opinion:
"The only question presented and argued on this appeal is whether the plaintiff has established ownership of the land. It is contended on behalf of the plaintiff that he purchased the land from George Baalson and became and is the fee owner. The contention is predicated upon the proposition that the telegram of January 15th 1944, which is set forth above, constituted an *Page 515 acceptance of plaintiff's offer to purchase. That as a result of such acceptance a contract came into being under which the plaintiff paid the taxes and became and is the owner of the land."
Immediately following this statement it is said:
"That never was our contention. We do not rely upon a strict contract of the sale of the land by George Baalson. What we have always claimed and claim now is that by virtue of the facts as proved by the testimony, which is not mentioned in the opinion, plaintiff became the equitable owner of the premises. That what plaintiff purchased was the right of redemption from George Baalson who was one of the owners. This is set out in Appellant's brief in the case. We never claimed that plaintiff purchased the fee title from George Baalson, but only the right to redeem, and plaintiff was to pay the amount required to redeem plus $1,000.00 to the former owners. He paid the redemption money on the last day for redemption and he has always been ready, able and willing to pay the $1,000.00 to the former owners. That the redemption was made on the last day and that if he had not so redeemed the land, all rights of the former owners would be lost."
The plaintiff is required in his complaint to state the facts constituting his cause of action. ND Rev Code 1943, § 28-0702. The only pleading on the part of the defendant is either a demurrer or an answer. ND Rev Code 1943, § 28-0704. The functions of the pleadings are to develop and present the precise points between the parties, to inform the court of the facts in issue, that it may declare the law, and the parties, that they may know what to meet by their proof. 41 Am Jur 288, 289, Pleading.
Our statute says: — "Issues arise upon the pleadings when a fact or conclusion of law is maintained by the one party, and controverted by the other. They are of two kinds: 1. Of law; and, 2. Of fact." ND Rev Code 1943, § 28-1202.
The complaint in this case consists of two paragraphs which read as follows:
"1. That the Plaintiff, Fred Reitman is the owner in fee simple *Page 516 of the following described premises situated in McLean County, North Dakota, to-wit:
East Half (E 1/2) of Section Thirty-three (33) Township One Hundred Forty-seven (147), North, Range Eighty-two (82), West of 5th P.M., McLean County, North Dakota.
"2. That the defendants claim certain estates, interest in or liens or encumbrances upon the property adverse to the plaintiff, the particular nature of which is not known to this plaintiff."
The allegations of the answer of the defendant Gross are set forth in the former opinion. There was no amendment of the pleadings of either party.
The allegations of the complaint speak for themselves. There is the positive and unqualified allegation "that the plaintiff Fred Reitman is the owner in fee simple." Upon the trial plaintiff testified that he had no deed from George Baalson or any of the other owners; that he made redemption from the tax sale by paying the amount due; that such redemption and payment were made pursuant to the telegram dated January 15, 1944, which is set forth in full in the former opinion. The testimony of the plaintiff upon the trial is quite positive that he was not seeking to purchase George Baalson's interest in the land, but that his offer was for all interests, that is, for the whole title to the land. On his cross-examination the plaintiff testified:
"Q. On the same day you paid the taxes, you received a telegram marked Exhibit `C.' A. Yes.
Q. You received this telegram and came to Washburn and paid the taxes?
A. Yes.
Q. At that time you had not bought this land, had you?
A. I made an offer and he took me up on the offer. He took up the offer I made him according to the telegram.
Q. You understood this telegram to be an acceptance of your offer, did you? A. That is right.
Q. This telegram reads as follows: `IF YOU DESIRE PURCHASE OF PROPERTY STATED IN YOUR LETTER GO AHEAD AND PAY TAXES USE THIS TELEGRAM OF MY AUTHORIZATION WRITE ME DETAILS AT ONCE.' *Page 517 Did you gather from that that he had accepted your offer? A. Yes.
Q. But there is nothing said in this telegram about accepting the offer, is there?
A. I don't know if he wanted to put it that way or not. . . .
Q. You would say, yes. Now, at the time you made the offer, was your offer of $1000.00 and the taxes for just George Baalson's interest in that land? A. No.
Q. You were making him an offer for all the land, were you?
A. Yes.
Q. At the time you made the offer, you thought that George Baalson owned it all, did you?
A. I never thought — I couldn't say what I thought then.
Q. When you made the offer for $1000.00, you made the offer not for George Baalson's interest, alone, but for all the interest in that land, is that right?
A. Yes, that is right. . . .
Q. Then you found out he only owned a 15/38ths interest?
A. Yes.
Q. Were you willing to go ahead with your offer of $1000.00 for a 15/38ths interest?
A. That whole amount was already made, I had redeemed the taxes, I already made that payment.
Q. You did not answer my question — were you willing to pay the offer you made for George Baalson's 15/38ths interest?
A. That is for all of it.
Q. You mean to testify that your offer was for all of it?
A. Yes.
Q. You would not pay him the amount offered for his interest in the land, you would not pay it for his interest? A. Right. . . .
Q. At the time you made this first offer, apparently, you were under the impression that he was the administrator of the estate, were you?
A. Yes.
Q. In Plaintiff's Exhibit B, (letter) he explains to you that he is not the administrator. A. Yes. *Page 518
Q. You do not claim any interest, Mr. Reitman, in the ownership of this land that belongs to Joe Baalson, or to the Whitakers, do you?
A. After I made the deal, yes."
There is no reference in this testimony to an offer to purchase "from George Baalson the right to redeem." The plaintiff makes it quite plain that his offer to purchase covered the whole title or fee estate and nothing less, and he asserts that after he "made the deal" he claims interest "in the ownership of the land that belongs to Joe Baalson or to the Whitakers."
In the petition for rehearing it is stated that certain pages of appellant's brief "refer to the equity of the plaintiff and his rights as the equitable owner" of the land and it is said:
"We find no reference to the certificate of redemption in the opinion. What right would plaintiff get when he redeemed? He at least became the equitable owner of the premises. We may read the opinion through and we find not a word about the law of equity, nor do we find any reference to the evidence offered and received in support of our equitable rights. We may ask the question, what right has a person holding a certificate of redemption, What rights has a person who has paid for such certificate of redemption under the circumstances set out in the testimony in this case, where plaintiff saved $1,000.00 for the former owners, and in protecting them from the defendant George Gross who, the testimony shows, intended to procure the title to the land through tax proceedings by procuring an assignment of the tax certificate."
It is true that in the former opinion we did not use the terms "redeem" or "redemption," but stated that the plaintiff paid the taxes. Neither did we refer to the fact that upon the payment made by the plaintiff the usual receipts were issued. The issuance of such receipts would, of course, follow as a matter of course in the performance of official duty. And such receipts were issued, and they were introduced in evidence in this case. The opinion, however, left no doubt as to what occurred. The opinion shows the land had been sold for taxes and bid in by the county; that the tax sale certificates were assigned to the *Page 519 defendant Gross, and that notice of expiration of the period of redemption had been issued thereon. It was these taxes that the plaintiff paid. And, according to our statute, the redemption from a tax sale is made by paying the amount paid by the purchaser at the tax sale, plus such interest and penalties as may be specified in the certificate. Laws 1931, Chapter 298, § 3; ND Rev Code 1943, § 57-2606. And when notice of expiration of the period of redemption has been issued, the cost incident to the service of such notice is added to the amount required to be paid. ND Rev Code 1943, §§ 57-2702, 57-2805, 57-2807.
This case does not involve the sale or transfer of an "equity of redemption." "Equity of redemption" is a term used in the law of mortgages "to describe either (1) The right in equity of the mortgagor to redeem after default in the performance of the conditions in the mortgage. (2) The estate which remains in the mortgagor after the execution of the mortgage." 42 CJ 432. See also, Bouvier's Law Dictionary. It is also used in a nontechnical sense to describe the title of the mortgagor without regard as to whether the condition of the mortgage has been broken. 15 Words Phrases, Perm ed pp 79 et seq.
George Baalson was the owner in fee of an undivided 15/38ths interest in the land. His right to redeem from the tax sale was a legal right flowing from his ownership. A redemption from a tax sale by payment of the amount due does not operate as an assignment of a tax sale certificate or any right thereunder. The plaintiff acquired no interest or estate in the land by virtue of the redemption from the tax sale. The statute prescribes the following duties to be performed by the county auditor and the county treasurer upon redemption:
"The County Auditor shall certify to the amount due upon redemption, and on payment of the same to the County Treasurer, the said Treasurer shall make duplicate receipts for the certified amount, describing the property redeemed, one of which receipts shall be filed with the County Auditor, which shall havethe effect of annulling the sale." Laws 1931, Chap 298, § 3; ND Rev Code 1943, § 57-2606. (Italics supplied.) *Page 520
In this case no "certificate of redemption" was issued, but receipts as prescribed by the statute were issued upon the payment made by the plaintiff, reciting the payment by him of the sum specified in the receipts.
"A valid and effective redemption from a tax sale annuls the sale and divests the lien of the tax for which the land was sold, leaving it as free as before. . . . Redemption creates no rights in the land; it restores the owner to his title as it stood before the sale, exactly as it was, but restoring at the same time any liens, encumbrances, or conflicting claims which were previously operative against him. Neither does the redemption transfer to the owner any title or interest which the tax purchaser held independently of the tax sale." 61 CJ p 1287, § 1788.
We adhere to the former opinion. We are agreed that the evidence in this case fails to establish that the plaintiff has any interest or estate, either legal or equitable, in the premises in suit.
A rehearing is denied.
BURR, NEUSSLE, BURKE and MORRIS, JJ., concur.