Beggs v. Paine

Young, J.

(dissenting in part). As to the several questions considered and decided in this case I do not agree with my associates in their conclusions as to those numbered 3, 4, 9 and 13, in the syllabus, and will state my views in reference thereto as briefly as may be.

(4) I do not think that a new trial should be ordered as to the first defense to give the defendant another opportunity to establish, if he can, by common-law proof, an estate or interest in the premises under the 1890 sale, which he failed to establish by the void tax deed. In my opinion there is no just ground for this course. The defendant had the choice of introducing common-law proof or of relying upon the presumption of regularity which arises from the introduction of a tax deed, regular upon its fact. He chose to rely upon the deed. It is clear that any evidence which he can produce at the new trial was available when he made his election as to the kind of proof he would rest his case upon. If, therefore, we assume, and it is an unwarranted assumption, that he erred in electing to rely upon the deed, it was nothing more than an error of judgment which is a common incident of all trials, and is never held to present a ground for a new trial. Bacon v. Mitchell, 14 N. D. 454, 106 N. W. 129. If the rule were otherwise, there would be no end to lawsuits. I cannot see how the court or opposing coun*457sel were in any way chargeable with the error if it was one. The record shows that when the defendant offered the deed in evidence, the following proceedings occurred: “Plaintiffs counsel: ‘Objected to as incompetent, not in the form required by law.’ The Court: ‘In what particular is it not in form? The objection is very general.’ Plaintiff’s counsel: ‘I am not relying principally upon it. I am hardly ready to specify now.’ The Court: ‘If you expect to make a point on it, you must call the court’s attention to the particular defect.’ Plaintiff’s counsel: T guess I won’t put in any objection then. I am not certain that there is any defect in the form of the deed.’ Defendant’s counsel: ‘You withdraw the objection?’ Plaintiff’s counsel: T prefer to let the objection stand as it is without withdrawing it.’ ” It is apparent that plaintiff’s counsel had not discovered the defect in the deed when he made his objection. He did not consent to its introduction, however. On the contrary, he persisted in his objection that the deed was not in proper form. But that is not important for the burden was upon the defendant to know at his peril whether the deed had any evidentiary force, and his error in judgment is not ground for a new trial. The chief end in view in the enactment of section 5630, Rev. Codes 1899, wdiich governs the proceedings in this case, was to secure a speedy and final determination of cases without the necessity of a new trial. True, the section contains a saving clause giving this court the power to grant a new trial when it deems that course necessary to the accomplishment of justice. This is a power which has been heretofore, and should be at all times, cautiously exercised. It is manifest that, upon a statutory motion for a new trial, the facts above stated would be insufficient, and in my view, an equally strong ground should be required to move the court to grant a new trial in actions tried under section 5630, in view of its manifest purpose. Any other course largely nullifies the chief purpose of this section. I am also of opinion that, if the case is to go back for a new trial, even-handed justice requires that the landowner be given the same consideration as the tax purchaser. He should be permitted to offer further evidence, if he so elects, to show that the sales which the trial court found were void, but which the majority hold upon the present record are valid, are in fact void, for reasons other than those presented at the former trial. But, as previously stated, the case is not one in which, in my opinion, a new trial can be ordered without doing violence to the spirit and purpose of the statute.

*458(3) As to the statement that a tax purchaser, who has terminated the right of redemption, has the same estate right and title as one who has completed his purchase by receiving a tax deed, I express no opinion. As I view it, the record contains no facts which present the question. There are no rights involved which depend upon this question. The defendant in his answer alleges a regular tax sale, the delivery of a tax certificate, the termination of redemption period by notice, and the issuance of the tax deed which we hold is void. If, upon the new trial, he shall prove a valid sale and notice of expiration of redemption, the trial court will so adjudge. Whether in that event, the defendant would have perfect title, and the same and all the rights of one who had taken out a tax deed is a question not in issue. The question is one of some importance, and should not be determined until it arises in a regular way.

(9) With the general statement that the rights acquired by a purchaser at a tax sale cannot be swept away by subsequent legislation, I fully agree. This court has repeatedly so held, and there is of necessity no division in the authorities upon that question. The point upon which I differ with the majority is in their construction of the statute in reference to which they invoke the prohibition against the impairment of contracts. The two sections of the Revised Codes of 1895, which my associates hold give the purchaser at a void tax sale the right to a judgment and a lien for the amount paid upon the purchase, and for all subsequent payments, and the right of foreclosure, are sections 1273 and 1261, Rev. Codes 1895. Section 1273 makes it the duty of the court to enter judgment against the taxpayer for “the true and just amount of taxes due upon the property,” in actions to cancel tax sales and tax deeds, and authorizes the issuance of execution upon such judgments. It makes no reference' to a lien in any way. Section 1261 provides for the issuance of certificates to purchasers at tax sales, prescribes the form of the certificate, and further provides that “the purchaser acquires the lien of the tax on the land, and if he subsequently pays the taxes levied on the same, he shall have the same lien for them, and may add them to the amount paid by him in the purchase. * * *” In my opinion these two sections relate to distinct matters: One to the remedy of a purchaser at a void sale; and the other to the rights of a purchaser at a valid sale, and under a valid certificate. Section 1273, which is a *459part of article 12, relating to “Sales Wrongfully Made,” contains the promise of the state to the purchaser at a void sale of a judgment for the taxes justly due, which is made enforceable by execution, as a measure of indemnity for the loss of his supposed purchase. Section 1261, which is found in article 9 of the same chapter, relates, not to void sales and the consquences thereof, but to valid sales, and the rights of purchasers at such sales. Under this section the lien of the tax at a valid sale, although the tax itself is discharged by the sale, follows the certificate, and to this lien is added a lien for taxes subsequently paid by the holder of the certificate. It is apparent that section 1261 refers to certificate issued upon valid sales. This view is reinforced by considering the rights and liabilities of the owner. If he does not redeem and the sale is valid, the purchaser will acquire title. If the sale is void and a nullity, title will not pass. He incurs no peril by disregarding a void sale, but not so as to a valid sale. He must redeem from a valid sale, and pay the amount stated in the certificate which includes the tax, interest, penalty and costs of sale, with 15 per cent interest, and all subsequent taxes paid by the purchaser with the same rate of interest. Section 1264.

Some states have statutes which provide that the purchaser acquires a lien when the sale is void, and provides means for its enforcement. Such statutes are necessary, for taxes are not matcers of contract, and “only statutory ,means are to be resorted to for their collection.” Croskery v. Busch (Mich.) 74 N. W. 464; Cooley on Taxation (1st Ed.) 300; Eyke v. Lange, 104 Mich. 26, 63 N. W. 535. So, in this state it has been held that a suit in equity in the nature of a suit to foreclose a mortgage will not lie to foreclose a tax lien, the statutory remedy being exclusive. McHenry v. Kidder County, 8 N. D. 413, 79 N. W. 875. See, also, Gage v. Eddy, 186 Ill. 432, 57 N. E. 1030. Such a provision is found in section 28, c. 67, p. 89, Laws 1897, which is a part of the original “Woods Law.” That section declares that when a sale under a tax judgment is declared void, the purchaser, who had paid subsequent taxes, shall have a lien thereon for the same, and authorizes its enforcement by action. The statute under consideration contains no such provision. A purchaser at a tax sale buys under the rule caveat emptor. If the sale is valid he has under his certificate a lien for the amount of the tax, interest and penalty, and costs of sale, and also for amounts paid for subse*460quent taxes. Section 1261, supra. If the sale is void, he acquires nothing. A void sale is no sale, and he is, as to all payments, subsequently under a mere volunteer. This court has so held in a number of cases where the sales were set aside for want of a valid assessment, and the same reasons apply to a sale which is set aside for want of a valid levy; for both are equally jurisdictional. Sheets v. Paine, 10 N. D. 107, 86 N. W. 117; Roberts v. Bank, 8 N. D. 504, 79 N. W. 1049; McHenry v. Britt, 9 N. D. 68, 81 N. W. 65. See, also, Barber v. Evans, 27 Minn. 92, 6 N. W. 445. When the sale is valid, the lien acquired by the purchaser may be ripened into title by statutory methods, unless redemption is made; and, in such cases, the statutory remedies' are ample and exclusive. When the sale is void, the purchaser acquires no right. Whatever redress he may have for moneys paid out at the void sale, or subsequently, must be found in the statute, and the only remedy given is that contained in section 1273; that is, a judgment enforceable by execution. The question as to nature and extent of the lien of such a judgment need not be discussed. For the reasons stated, I cannot concur in the view, either that the defendant through the void sale acquired the lien of the tax, or that he is entitled to a judgment -of foreclosure. The relief to which the defendant is entitled is, in my opinion, entirely different from that awarded him in the majority opinion. • The record in this case shows that the defendant purchased the premises at several sales: First, under the 1890 revenue law, then under the 1895 law, and again under the 1897 law. The rights of the purchaser when the sale is set aside are different under each law. As to purchases under the 1890 law, he is entitled to be repaid by the county treasurer the amount paid at the sale and the amount paid as subsequent taxes and costs, with 10 per cent interest. See section 84, c. 132, p. 408, Laws 1890. As to sales under the 1897 law, he has the same redress, except that the interest rate is 7 per cent. See section 88, c. 126, p. 289, Laws 1897; section 1270, Rev. Codes 1899. The sole remedy given in case of void sales under the 1895 law is the judgment authorized by section 1273 of the 1895 Code.

(13) Neither am I able to agree to the construction given to section 1263, Rev. Codes 1899 (section 78, c. 126, p. 286, Laws 1897), or to its application. This section, which is quoted in the majority opinion, provides that no sale shall be set aside unless *461the person objecting shall prove certain jurisdictional defects; for instance, that the property was not subject to taxation, or that the taxes were paid, or that notice of sale was not given, etc. It does not designate an illegal levy as one of the grounds upon which a sale may be set aside; but, on the contrary, to the extent of legislative power, it commands that a sale shall not be set aside upon that ground.

Statutes like this áre quite common in revenue laws. The manifest purpose of such statutes is to dispense with strict obedience to the requirements of the law of which they are a part. This statute takes the form of a mandate to the courts commanding them to give effect to proceedings which have been taken under it, and to disregard all violations other than those enumerated. In this case the township tax, included in the consolidated tax for which the land was sold, was levied upon real estate alone. The levy had no warrant of law to support it, and could not have been authorized by the legislature. It was entirely void, and beyond the healing power of curative laws. Cooley on Constitutional Limitations, 7á7. The command of the legislature that a sale based upon such a levy shall not be set aside is therefore wholly ineffective. The will of the legislature should be given effect by the courts whenever it can be done constitutionally. But, when the legislature assumes power which it does not possess, as it frequently does, in these so-called “curative laws,” the effect of its declaration must be measured, not by the language of the command, but by the limitations upon its power. In this case it is conceded in the majority opinion, as I understand it, that the levy in question was beyond the. curative power of the legislature. Notwithstanding this, the conclusion is reached, and under the authority of the same section, that the sales which were based upon these void and incurable levies are valid, or at least are not open to question after the sale. This conclusion, as I understand the opinion, rests upon the assumption that section 1263 is also a statute of limitation, limiting the period of time in which the landowner may invoke the aid of the courts to protect his property against any and all unlawful invasion by the taxing power, and as against any and all defects in its exercise, jurisdictional, or otherwise, which occur prior to the sale, except those which are particularly enumeratéd in the section. It will be noted that this section does not except either a void levy or a void assessment, and both are jurisdictional and *462fatal, and incurable defects. The theory of the majority opinion apparently is that while such defects are not curable, judicial relief against them may be -and must be had before sale, and that relief is barred unless invoked before the sale. In other words, it is held that under section 1263, a limitation against the taxpayer’s remedy in court begins to run when the illegal assessment or levy is made; and if not invoked before the sale, the bar is complete. In my judgment, the statute will not bear this construction. I find no language in the section which suggests that it is a statute of limitations. Its language is wholly curative. It contains no statement in reference to the time when actions shall be brought. It merely declares that when actions are brought to set aside sales, they shall not be set aside except upon the grounds enumerated. That it was not the legislative intent to impose a limitation upon actions by this section is also otherwise apparent; for a limitation is in fact placed upon actions by the landowner in the same act and in the succeeding section (section 1264) which provides that “any person having or claiming title * * * may commence and maintain an action either in law or in equity at any time before or after the issuing of a tax certificate, and within three years after the execution and delivery of a deed * * * to test the validity of the tax sale, tax certificate, or tax deed * * * and if no action is commenced within the time aforesaid, such tax deed shall vest in the grantee a fee-simple title to the land. * * *” This section fixed a three-year period, in which the landowner may apply to the courts for relief, and it fixes a definite time when the statute commences to run. It is well settled that, prior to the sale, or at least not until a sale is threatened, courts of equity will not interfere at the suit of an individual taxpayer to enjoin the acts of the taxing officers, even though they are illegal. He must wait until his property rights aré invaded. A contemplated future injury will not be sufficient to sustain his action. Considerations of public policy compel an adherence to this rule. If this were not so, and every taxpayer could invoke the aid of the courts whenever the taxing officers act without or in excess of their authority, or commit an illegal act, the entire time of the courts would be consumed to the exclusion of other legitimate business, and the collection of revenues necessary to conduct village, city, township, county and state government would be seriously impeded. For these reasons, it has been held that the aid of the *463courts will be denied to the taxpayer until his property rights are invaded, or are immediately threatened. See Miller v. Grandy, 13 Mich. 540; Youngblood v. Sexton, 32 Mich. 406, 20 Am. Rep. 654; Jull v. Town of Fox Lake, 28 Wis. 583; Mayor v. Meserole, 26 Wend. (N.Y.) 132. Also the recent case of Torgrinson v. School District, 14 N. D. 10, 103 N. W. 414, where we approved and applied this rule, and cases there cited.

It is not claimed by counsel .for the original owner that the provisions of the revenue law, when observed by the officers charged with their execution do not accord to property owners due process of law. It is properly assumed that, if the taxing officers regularly pursue their authority, and the landowner fails to redeem, his title will be divested. When taxing officers act within their authority and jurisdiction, he is bound by their acts, and in such cases his remedies are those contained in the revenue law itself. But the case is entirely different when the taxing officers proceed in disregard of the statute, and without authority, for their illegal and unauthorized acts do not bind him; and, for the purpose of preventing the taking of his property through such unlawful methods, he is entitled to his day in court. But, as previously stated, his application for relief will not be entertained until his property rights are threatened or invaded by a sale. It is apparent, therefore, that to hold that the landowner must in every case bring his action before sale, is in effect to deny a remedy; for as already stated, the courts will not entertain his application for relief, at least until a sale is threatened. The present holding is at variance with the settled construction of such statutes. There is no distinction in legal effect between a void levy and a void assessment, and this court recently, in harmony with the views of other courts, in the case of Scott Barrett Merc. Co. v. Nelson County, 14 N. D. 407, 104 N. W. 528, said that “the want of an assessment could not be cured or barred by the sale.” This is, I believe, a correct statement of the law.

The majority further contend that the officer making the sale had jurisdiction to sell the land that the inclusion of the illegal road tax with the legal taxes was merely an error in exercising his jurisdiction, and is therefore a mere irregularity. It is said: “The void road tax was only a small fractional part of the aggregate taxes for which the sale was made. The other tax levies were valid. There was, therefore, jurisdiction to sell the land for taxes, and if *464the road tax was void, it was merely an error in the exercise of the jurisdiction, resulting in a sale for more than was legally due; but this error in the exercise of jurisdiction is a wholly different thing from an absence of jurisdiction.” I cannot assent to this reasoning. It erroneously assumes that the officer who has authority to sell is clothed with general .authority, and has a discretion, and that, whether he pursues his statutory authority or not, so long as he makes a sale, he is acting with authority. This is erroneous. His authority is special. He has only the authority given him by the statute. He can only sell at the time, place and manner provided in the statutes and after giving the notice required by the statute and for taxes legally due. Where he departs from his statutory authority, his acts are void; for, unless his acts are authorized, they have no more validity than the acts of a stranger. This has been the settled law of this country ever since the decision of Williams v. Peyton, 4 Wheat. (U. S.) 76, 4 L. Ed. 518, which involved a tax deed, and in which Chief Justice Marshall used this language: “As the collector has no general authority to sell the lands at his discretion for the nonpayment of the direct tax, but a special power to sell in the particular cases described in the act, those cases must exist, or his power does not arise. It is a naked power, not coupled with an interest, and, in all such cases, the law requires that every prerequisite to the exercise of that power must precede its exercise; that the agent must pursue the power or his act will not be sustained by it.” No authority exists for selling land for taxes which are not legally due, and a sale for taxes, a part of which is illegal, is without authority of law, and is void. Such is the view of the text-writers (Blackwell on Tax Titles, 160; Cooley on Taxation, 296 (2d Ed.) 497; Burrough on Tax’n, 301; Desty, Taxation, 972), and this court has so held. (Lee v. Crawford, 10 N. D. 483, 88 N. W. 97). And our opinion in the case just cited is in harmony with the opinion of the courts generally. See People v. Hagadorn, 104 N. Y. 516, 10 N. E. 891; Poth v. Mayor, 151 N. Y. 16, 45 N. E. 372; Buell v. Irwin, 24 Mich. 145; Silsbee v. Stockle, 44 Mich. 561, 7 N. W. 160, 367; Hardenburgh v. Kidd, 10 Cal. 402; Treadwell v. Patterson, 51 Cal. 637; Drew v. Davis, 10 Vt. 506, 33 Am. Dec. 213; Gamble v. Witty, 55 Miss. 26-35; McLaughlin v. Thompson, 55 Ill. 249; Riverside Co. v. Howell, 113 Ill. 256, 262; Gage v. Pumpelly, 115 U. S. 454, 6 Sup. Ct. 136, 29 L. Ed. 449; Kemper v. McClelland’s Est., 19 Ohio, 324; Elwell v. *465Shaw, 1 Greenl. (Me.) 339; Huse v. Merriam, 2 Greenl. (Me.) 375; Wallingford v. Fiske, 24 Me. 386; Worthen v. Badgett, 32 Ark. 496; Parr v. Matthews, 50 Ark. 390, 8 S. W. 22; Kimball v. Ballard, 19 Wis. 601, 88 Am. Dec. 705; Barden v. Supervisors, 33 Wis. 447, 14 Am. Rep. 762; Baker v. Supervisors, 39 Wis. 444. See, also, the opinion of the Circuit Court of Appeals, Eighth Circuit, in Alexander v. Gordon, 101 Fed. 91, 41 C. C. A. 228, an Arkansas case, in which it was held that such a sale as the one under consideration was void; “that the sale itself was not only-irregular, but void, because it was made for the collection of a tax in excess of the amount which the county court was authorized by the statutes to levy, and because the officer who made the sale was without jurisdiction or authority to effect it.” And it was also held that the sale was not protected by the two-year statute of limitations. See, also, Cooley on Const. Lim. (5th Ed.) 645.

(109 N. W. 322.)

The foregoing cases fully sustain the doctrine laid down by Judge Cooley, that “A sale for anything more than is lawfully chargeable is a sale without jurisdiction, and therefore void.” Under this rule, it must be held that the sale in question in this case was void for jurisdictional reasons, and, as such, the statute could have no curative effect. Neither could it bar the original owner from subsequently asserting in court the invalidity of the levy, when necessary to protect his property rights. In what I have said, I do not wish to be understood as assenting to the view that a statute of limitations will in any case validate a void paper claim like a void tax certificate, or that even a void tax deed will in any case bar the right of the true owner, who is in possession and in the enjoyment of all his rights, from urging the invalidity of a sale for jurisdictional reasons. I think the rule is quite well settled to the contrary. This question is involved in Nind v. Myers, 109 N. W. 335, now pending in this court, and I will present a statement of my views in that case.

The trial court held that the several tax sales and tax deeds set up in defendant’s answer were void; and, in my opinion, the judgment in this respect should be affirmed, and relief should be granted to the defendant for payments maae at the sale, and for taxes subsequently paid, according to the provisions of the law in¡ force when the sales were made, as hereinbefore stated.