Stutsman County Dak v. Wallace
Action in a territorial court of Dakota by Charles S. Wallace and James M. Martin, as assignee of Daniel H. Wallace, against Stutsman county, to recover moneys paid as the purchase price of lands sold for taxes. Judgment was rendered for plaintiffs, which was affirmed by the territorial supreme court. Defendant appeals. Reversed.

STATEMENT BY MR. CHIEF JUSTICE FULLER.

Appellees brought an action in the district court for the sixth judicial district of the territory of Dakota, September 28, 1886, to recover from Stutsman county certain moneys which they had paid that county for lands which the treasurer of the county had assumed to sell to them in satisfaction of taxes wrongfully assessed thereon, and which sale was therefore invalid. They also sought to recover the amount of taxes paid by them on the land after the sale, and prayed judgment for the amounts paid, and interest at 30 per cent. per annum thereon from the dates of the payments, respectively.

The allegations of the complaint were denied by the defendant, and the action was tried upon a statement of facts agreed to by the parties, which statement was adopted by the district court as its findings of fact. These findings were, in substance, that the lands in question were part of the original grant by the United States to the Northern Pacific Railroad Company; that no patents had been issued for them; that the company earned the lands after the passage of the act of congress of date July 15, 1870, in regard to the payment of the costs of surveying; that they were surveyed at the expense of the United States government, and no part of the cost and expenses of the survey had at the time of the tax-sale been repaid by the railroad company to the United States; that in the year 1880 the proper officers of the county assessed all the parcels of land mentioned in a schedule attached to the complaint, marked 'A,' and levied certain taxes thereon, to-wit, the territorial, county, general school, and district school taxes, amounting in the aggregate to $5,500, all of which remained unpaid October 1, 1882; that prior to that date the then county treasurer of that county offered the lands for sale for the non-payment of said taxes, and for the collection of the same, and sold them to Charles S. Wallace for sums amounting in the aggregate to $5,221.75, and the treasurer then and there executed and delivered to Wallace the certificate of sale of the lands in the form provided by law to be issued upon the sale of land for non-payment of taxes, and Wallace paid the treasurer said amount; that in 1881 the officers of the county, duly authorized to assess property therein, assessed and levied taxes upon said parcels of land for the territorial, county, and school taxes, and that Wallace, 'in order to protect his tax-lien thereon and equitable title thereto, paid to the defendant's treasurer, as subsequent taxes upon said land, being the taxes so levied for the year 1881,' the amount of $4,699.25, none of which taxes so levied for the year 1881 had theretofore been paid; that in 1882 the officers of the county assessed and levied territorial, county, general school, and district school taxes upon the parcels of land described in the schedule attached to the complaint and marked 'B,' all of which remained unpaid October 1, 1883, and the then treasurer of the county offered the lands for sale for the non-payment of the taxes, and for the collection of the same, and sold them to Wallace for the sum in the aggregate of $6,033, and the treasurer delivered certificates of sale to Wallace, and he paid the said amount.

That in October, 1884, the Northern Pacific Railroad Company brought an action against the treasurer and Wallace, wherein a decree was entered adjudging the tax proceedings in question to be null and void, and enjoining the treasurer from making, and Wallace from receiving, any tax-deed to the property named in Schedule A; and in September, 1885, a like action was brought, which resulted in a similar decree as to the property named in Schedule B.

It was also found that James M. Martin had an interest in the tax-receipts under an assignment from Wallace, and that prior to the commencement of this action plaintiffs tendered to the board of county commissioners of Stutsman county the tax-certificates in question, 'and offered to surrender said certificates to said county upon the payment of the amount so paid by said plaintiff, Charles S. Wallace, for the purchase of said lands at said sales, and for the payment of the subsequent taxes thereon as aforesaid, together with the interest thereon at the rate of 30 per cent. per annum from the dates of such payment,' but defendant refused to pay that sum, or any part thereof, and the whole is still unpaid; and that no part of the land has ever been redeemed from the sales, nor from either of them, nor from the subsequent taxes paid as aforesaid.

The court found as conclusions of law that no taxes were due upon the lands at the time of their sale, and that they were sold 'by the mistake and wrongful act of the defendant's treasurer, the then county treasurer of Stutsman county, and that the plaintiffs are entitled to recover from the defendant the amount paid for said lands at said sales, and the amount paid as subsequent taxes thereon, as hereinafter stated, together with thirty per cent. interest thereon, and on the whole amount so paid, from and after the date of such payments, as hereinafter specified, to this date;' and thereupon directed judgment in favor of plaintiffs, and against Stutsman county, for $9,921, with interest from and after October 1, 1882, at the rate of 30 per cent. per annum, and for the amount of $6,033, with interest thereon from and after October 1, 1883, at the rate of 30 per cent. per annum, amounting in the aggregate, both principal and interest, to the sum of $35,800, together with costs and disbursements, and judgment was entered accordingly.

Exceptions were duly taken, and motion for new trial made and overruled. The county thereupon carried the case, on appeal, to the supreme court of the territory, by which the judgment was affirmed, whereupon an appeal was prayed and allowed to this court.

The parts of the revenue laws of the territory of Dakota referred to be counsel are given in the margin. 

Jon F. Dillon and Harry Hubbard, for appellant.

J. H. Baldwin and W. E. Dodge, for appellees.

[Argument of Counsel from pages 302-305 intentionally omitted]

Mr. Chief justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes

Sections 1, 2, and 3 name the classes of property liable to, and enumerate such as are exempt from, taxation. Subdivision 1 of section 2 states as exempt 'the property of the United States and of this territory, including school lands.'

Sections 4 to 26 provide for the assessment of 'taxable property,' and prescribe the manner of proceeding by the assessor in making up the assessment roll. He is required to list and assess 'all taxable property, real and personal,' each year, at its cash value at the place of listing on the day named, and can demand information of the owners, who are obliged to list all property subject to taxation, and must list property, of which the owners are unknown, to 'unknown owners.'

The form of the assessment roll is prescribed in sections 26 and 27, and by

sections 28-30 the equalization of the assessment roll by the board of county commissioners is provided for; and the board is given power to correct errors made in the list by the assessor, and to add thereto any property, real or personal, subject to taxation, omitted by the owner or the assessor. During the session of the board, any person, or his agent or attorney, feeling aggrieved by anything in the assessment roll, may apply to the board for the correction of any alleged errors in the listing or valuation of his property, whether real or personal, and the board may correct the same as shall be just.

Under sections 31 and 32, abstracts of assessments must be forwarded to the territorial auditor, and the assessments may be equalized by the territorial board for territorial purposes and for territorial taxes.

The rates and date and levy of taxes, and the preparation of duplicate tax-lists by the county clerk, with their form, one of which lists is retained by the county clerk, and the other delivered, with the warrant of the county commissioners attached, to the county treasurer, are prescribed by sections 33 to 39.

Section 40 reads thus:

'An entry is required to be made upon the tax-list and its duplicate, showing what it is, and for what county and what year it is, and the county commissioners shall attach to the lists their warrants, under their hand and official seal, in general terms requiring the treasurer to collect the taxes therein levied according to law; and no informality in the foregoing requirements shall render any proceedings for the collection of taxes illegal. The county clerk shall take the receipt of the county treasurer on delivering to him the duplicate tax-list, with the warrant of the county commissioners attached; and such list shall be full and sufficient authority for the collection by the treasurer of all taxes therein contained.'

Sections 41 to 44 relate to the collection of taxes and form of receipts.

Section 45 provides.

'It shall be the duty of the county clerk, on receiving any duplicate tax-receipt from the treasurer, forthwith to examine the same, and compare it with the tax-list in his possession, and see if the total amount of taxes and the several amounts of the different funds are correctly entered and set forth in such receipt; and in case it shall appear that the treasurer has not collected the full amount of taxes and interest which, according to the tax-list and the terms of the receipt, he should have collected, then the county clerk shall forthwith charge the treasurer with the amount such receipt falls short of the true amount, and the treasurer shall be liable on his official bond to account for and pay over the same.'

Sections 46 to 51 relate to the treasurer's cashbook and the duplicate cash-book kept by the county clerk.

Section 52 is as follows:

'If on the assessment roll or tax-list there be any error in the name of

the person assessed or taxed, the name may be changed, and the tax collected from the person intened, if he be taxable and can be identified by the assessor or treasurer; and when the treasurer, after the tax-list is committed to him, shall ascertain that any land or other property is omitted, he shall report the fact to the county clerk, who, upon being satisfied thereof, shall enter the same upon his assessment roll, and assess the value, and the treasurer shall enter it upon the tax-list, and collect the tax as in other cases.'

Delinquency, penalty for non-payment, and lien of taxes are provided for by sections 53 to 56; section 56 reading: 'Taxes upon real property are hereby made a perpetual lien thereupon against all persons and bodies corporate except the United States and the territory; and taxes due from any person upon personal property shall be a lien upon any real property owned by such person, or to which he may acquire a title.'

Sections 57 to 59 treat of collection of taxes by distress and sale of personal property, and sections 60 to 69 of the sale of real property for taxes, and the form of certificate of sale.

Section 62 reads:

'That on the first Monday of October in each year, between the hours of nine o'clock A. M. and four o'clock P. M., the treasurer is directed to offer at public sale, at the court-house, or place of holding courts in his county, or at the treasurer's office, where, by law, the taxes are made payable, all lands, town lots, or other real property which shall be liable for taxes of any description for the preceding year or years, and which shall remain due and unpaid, and he may adjourn the sale from day to day until all the lands, lots, or other real property have been of fered, and no taxable property shall be exempt from levy or sale for taxes.'

Section 67 is as follows:

'The purchaser of any tract of land sold by the county treasurer for taxes will be entitled to a certificate in writing describing the land so purchased, the sum paid, and the time when the purchaser will be entitled to a deed, which certificate shall be assignable, and said assignment must be acknowledged before some officer having power to take acknowledgment of deeds. Such certificate shall be signed by the treasurer in his official capacity, and shall be presumptive evidence of the regularity of all prior proceedings. The purchaser acquires the lien of the tax on the land; and if he subsequently pay any taxes levied on the same, whether levied for any year or years previous or subsequent to such sale, he shall have the same lien for them, and may add them to the amount paid by him in the purchase; and the treasurer shall make out a tax-receipt and duplicate for the taxes on the real estate mentioned in such certificate, the same as in other cases, and shall write thereon, 'Sold for tax at public sale."

Then follows the form of certificate.

Section 69 concludes with the provision: 'And the treasurer is further authorized and required to sell, as aforesaid, all real estate in his county on which taxes remain unpaid and delinquent for any previous year or years.'

Section 70 provides for a redemption of lands sold for taxes upon the payment of 'the sum mentioned in this certificate, and interest thereon at the rate of thirty (30) per cent. per annum from the date of purchase, together with all other taxes subsequently paid, whether for any year or years previous or subsequent to said sale, and interest thereon at the same rate from the date of such payment.'

Section 73 is as follows:

'If no person shall redeem such lands within two years, at any time after the expiration thereof, and on production of the certificate of purchase, the treasurer of the county in which the sale of such lands took place shall execute to the purchaser, his heirs or assigns, in the name of the territory, a deed of the land remaining unredeemed, which shall vest in the grantee an absolute estate in fee-simple in such lands, subject, however, to all the claims which the territory may have thereon for taxes or other liens or incumbrances.'

Section 78 reads thus:

'When, by mistake or wrongful act of the treasurer, land has been sold on which no tax was due at the time, the county is to save the purchaser harmless by paying him the amount of principal and interest to which he would have been entitled had the land been rightfully sold; and the treasurer and his sureties shall be liable for the amount to the county on his bond, or the purchaser may recover the same directly from the treasurer.'

Section 83 requires the county treasurer to pay over to the territorial treasurer, on or before the first Monday of November, and at all other times on demand, all territorial funds collected by him, and prescribes his fees for such collection and receipt.

Section 84 reads:

'If the county treasurer shall willfully and negligently fail to settle with the territorial treasurer at the time and in the manner above prescribed by law, he shall forfeit to the use of the territory the sum of five hundred dollars, which sum may be recovered of him or his sureties on suit brought by the territorial treasurer in any court in this territory having jurisdiction; or in case of failure of the territorial treasurer to bring such suit, then any citizen of the territory may bring the same.'

Section 85 provides for the procuring by the territorial auditor of a list from the proper land-office of all lands becoming taxable for the first time in each county, and the forwarding of the list to the clerk of such county.

Sections 89, 95, and 96 are as follows:

'§ 89. In the case of dereliction of duty on the part of any officer or person required by law to perform any duty under the provisions of this

act in any county in this territory, such person shall thereby forfeit all pay and allowance that would otherwise be due him; and the county commissioners in any such county, on receiving satisfactory evidence of such dereliction or failure to perform, as required by law, and duty enjoined by this act, shall refuse to pay such person or persons any sum whatever for such services.'

'If any county treasurer shall fail to make return, fail to make settlement, or fail to pay over all money with which he may stand charged, at the time and in the manner prescribed by law, it shall be the duty of the county clerk, on receiving instructions for that purpose from the territorial auditor or from the county commissioners of his county, to cause suit to be instituted against such treasurer and his sureties, or any of them, in the district court of his county.'

'Whenever suit shall have been commenced against any delinquent county treasurer, as aforesaid, the board of county commissioners of such county may, at their discretion, remove such treasurer from office, and appoint some suitable person to fill the vacancy thereby created, as herein before provided.'

Sections 94 and 95 of chapter 21 of the Political Code, (Codes 1877, p. 46,) prescribing the duties of the county treasurer, provide:

'He shall be the collector of taxes, shall keep his office at the county-seat, and shall attend his office three days in each week. He shall be charged with the amount of all tax-lists in his hands for collection, and credited with the amounts collected thereon, and the delinquent list, and shall keep a fair and accurate current account of the moneys by him received, showing the amount thereof, the time when, from whom, and on what account received, in cash, warrants, county or road orders; and, if in warrants or orders, their kind, number, or other designation, amounts for which they were drawn, interest due thereon, and the amounts of the receipts thereon indorsed, if any; also of all disbursements by him made, showing the time when, to whom, on what account, and the amount paid; and he shall so arrange his books that the amounts received and paid on account of each separate and distinct fund or appropriation shall be exhibited in separate and distinct columns or accounts, and so as to show whether the same was received or paid in cash or warrants or orders, and, if either of the latter, their designation and other particulars as above required; and the county treasurer shall at all times exhibit such accounts, when desired, to the territorial, county, or school officers entitled to receive the same, and shall at any time pay over the balance in his hands to them upon receiving proper vouchers.'

'The books, accounts, and vouchers of the county treasurer, and all moneys, warrants, or orders remaining in the treasury, shall at all times be subject to the inspection and examination of the board of county com-

missioners; and at the regular meetings of the board in January and July of each year, and at such other times as they may direct, he shall settle with them his accounts as treasurer, and for that purpose shall exhibit to them all his books, accounts, and moneys, and all vouchers relating to the same, to be audited and allowed, which vouchers shall be retained by them for evidence of his settlement; and, if found correct, the account shall be so certified; if not, he shall be liable on his bond.'

Section 84 of chapter 132 of the Laws of North Dakota, enacted in 1890, (Laws N. D. 1890, 376, 408,) is as follows:

'When a sale of land as provided in this act is declared void by judgment of court, the judgment declaring it void shall state for what reason such sale is declared void. In all cases where any such sale has been, or hereinafter shall be, so declared void, or any certificate or deed issued under such sale shall be set aside or canceled for any reason, or in case of mistake, or wrongful act of the treasurer or auditor, land has been sold upon which no tax was due at the time, the money paid by the purchaser at the sale, or by the assignee of the state upon taking the assignment, and all subsequent taxes, penalties, and costs paid by such purchaser or assignee, shall, with interest at the rate of ten per cent. per annum from the date of such payment, be returned to the purchaser or assignee, or the party holding his right, out of the county treasury, on the order of the county auditor; and so much of said money as has been paid into the state treasury shall be charged to the state by the county auditor, and deducted from the next money due the state on account of taxes. The county treasurer or auditor shall be liable on their bond for any loss occasioned by any such wrongful act. Whenever any sale of land, or certificate, or deed made or given under this act is declared void by judgment of court, unless the judgment declared the tax to be illegal, said tax and subsequent taxes returned to the purchaser or assignee, as provided in this section, shall remain a lien upon the land sold, and the county auditor shall advertise the same at the next succeeding annual sale, for the full amount of taxes, penalties, and costs due on said piece or parcel of land.'

The following are sections of chapter 69 of the Dakota General Laws of 1862, (Laws 1862, p. 419:)

'Sec. 36. On the first day of February the unpaid taxes for the preceding year shall draw interest as hereinafter provided, and taxes upon real property are hereby made a perpetual lien thereon against all persons, and taxes due from any person on personal property shall be a lien on any real property owned by such person.' 'Sec. 39. On the first Monday in October, 1864, and in each year thereafter, the county treasurer is required to offer at public sale at the court-house, or, if there is no court-house, at the office of the county treasurer, all lands on which taxes of any description for the preceding year or years shall have been delinquent and remain

due; and such sale shall be made for and in payment of the total amount of taxes, interest and cost due and unpaid on such real property.' 'Sec. 54. Immediately after the expiration of the term of three years from the date of the sale of any land for taxes under the provisions of this act, the treasurer then in office shall make out a deed for each lot of land sold and remaining unredeemed, and deliver the same to the purchaser upon the return of the certificate of purchase.'
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