Mueller v. Mercer County , 60 N.W.2d 678 ( 1953 )

GRIMSON, Judge.

Plaintiff brought this action to quiet title to the South twenty-five (25) feet of Lot Five (5) and all of Lot Six (6) in Block Forty-five (45) of the City of Hazen, County of Mercer and State of North Dakota. The complaint is in the statutory form. Plaintiff is the owner of said lots and her residence is located thereon. Defendant, Mercer County, claims a lien on said lots fo'r some unpaid 1947 and 1948 taxes based on the assessment by the county auditor of the residence on said lots claimed to have been omitted 'by the assessor. The plaintiff seeks to set aside the lien of said taxes. No other defendant answered.

At the close of the case defendant moved for a dismissal on the ground “That the plaintiff is attempting to invoke equity powers where they have an adequate remedy at law. In view of that the court does not have jurisdiction.” The motion was denied. The court then found for the plaintiff quieting title in her and setting aside defendant’s tax lien. Defendant appeals and asks for a trial de novo.

Defendant contends, first, that plaintiff had a complete remedy at law by appeal from the decision of the board of county commissioners, reviewing and equalizing and confirming the assessment of said residence by the county auditor, and had no right, therefore, to come into a court of equity to quiet title against the lien of these taxes.

Granting that the plaintiff had a right to appeal from any decision of the board of county commissioners, Sec. 11-1139, NDRC 1943, the qttestion is whether that bars the plaintiff from the use of the statutory action to quiet title.

Under the common law resort was had to the chancery courts to avoid multiplicity of suits and to remove clouds upon title in order to prevent future litigation. The grounds upon which the chancery courts obtained jurisdiction were the equitable considerations that the prevention of litigation and the protection of the true title and possession were promotive of right and justice. This procedure developed-into the statutory action to quiet title. Such statutes greatly enlarged the jurisdiction of the equity courts over that possessed by the chancery courts.

“In many of the states statutes have been enacted which greatly enlarge the jurisdiction of the courts in actions to remove cloud or quiet title, and generally permit actions to be brought to determine any adverse claim, interest, or estate in lands. Such statutes are designed to afford an easy and expeditious mode of quieting title to real estate. This result is secured by enlarging the power of the court to determine adverse claims to land and to quiet the title thereto in cases where, by the strict rules of a court of equity, suit is not maintainable.” 44 Am.Jur., Quieting Title, Sec. 5, p. 6.

“In many jurisdictions statutes have been enacted authorizing actions to be maintained for the determination of adverse claims and to quiet title. An action under statute to compel the determination of an adverse claim to realty is in its nature one to quiet plaintiff’s title to the property and to remove any cloud thereon. The action may be maintained independently of the common-law right to remove a cloud on the title by a bill in equity * * *.” 74 C.J.S. Quieting Title, § 6, p. 14. See also Anderson v. Whipple, 71 Idaho 112, 227 P.2d 351; McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 51 A.L.R. 743.

In Quintana v. Vigil, 46 N.M. 200, 125 P.2d 711, 715, it is said:

“Equity has an enlarged jurisdiction 'by virtue of our statute to try a suit to quiet title even though admittedly there is an adequate remedy at law * *

A New Mexico statute, Sec. 4387, N.M. Statutes Codification 1915, p. 1258 reading: “An action to determine and quiet the title of real property may be brought by any one having or claiming an interest therein whether in or out of possession of the same, against any person claiming title thereto”, has been held to enlarge the jurisdiction of equity and authorize suits to quiet title whether there is adequate remedy at law or not. Knaebel v. Escudero, 32 N.M. 311, 255 P. 633.

Thus is indicated by the courts the wide range of jurisdiction given to the courts in the statutory action for determining adverse claims and removing clouds on titles to real estate.

Our original statute for determining adverse claims was Sec. 635, Chapter 29, Rev. Codes, Dakota 1877, p. 584. It was entitled “Actions to Determine Conflicting Claims to Real Property” and provided: “An action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim.” This statute was amended and broadened by Section 1, Chapter 5, NDSL 1901 and is now embodied in Sec. 32-1701, NDRC 1943, reading as follows:

“An action may be maintained by any person having an estate or an interest in, or lien or encumbrance upon, real property, whether in or out of possession thereof and whether such property is vacant or unoccupied, against any person claiming an estate or interest in, or lien or encumbrance upon, the same, for the purpose of determining such adverse estate, interest, lien, or encumbrance.”

This court has held that while the action is in the nature of an equitable action it should be considered as strictly a statutory action to determine adverse claims. Tracy v. Wheeler, 15 N.D. 248, 107 N.W. 68, 69, 6 L.R.A., N.S., 516.

In Shuttuck v. Smith, 6 N.D. 56, 69 N.W. 5, we hold that an action to determine adverse claims under this statute is a procedure independent of the common-law right to remove a cloud from the title by an ordinary action in equity.

In Sexton v. Sutherland, 37 N.D. 500, 164 N.W. 278, 280, we say:

“The statutory action to determine adverse claims was evidently designed as a substitute for the equitable action to quiet title and the common-law action of ejectment; but it is broader and more comprehensive than either of those actions.”

That the courts under this statute have jurisdiction to remove clouds arising from void taxation is held in many cases. 44 Am. Jur., Quieting Title, Sec. 12, p. 12. In Penton v. Brown-Crummer Inv. Co., 222 Ala. 155, 131 So. 14, 16, it is said:

“It is well settled that courts of equity have jurisdiction and will intervene, at the insistence of the owner of real estate, to remove a cloud on his title arising from a void assessment for taxes or public improvement schemes, where the invalidity does not appear on the face of the proceedings, and extraneous evidence is required to develop the invalidity.” See also 4 Dil. Municipal Corp. (5th Ed.) Sec. 1590; 1 Pom.Eq.Juris.Secs. 259-270; High on Inj. Secs. 367, 368; Heywood v. City of Buffalo, 14 N.Y. 534; Ewing v. City of St. Louis, 5 Wall., U.S. 413, 18 L.Ed. 657.

In O’Neil v. Tyler, 3 N.D. 47, 53 N.W. 434, page 439, this court said:

“Plaintiff being in possession, and a cloud being cast upon his title by the tax deeds, an action would lie in equity to remove the cloud, and no court other than a court of equity could remove the cloud by a decree. * * * (Citations.)” See also Marshall Wells Co. v. Foster County, 59 N.D. 599, 231 N.W. 542; Northern Pacific Railway Co. v. Morton County, 32 N.D. 627, 156 N.W. 226, L.R.A.1916E, 404; Shuttuck v. Smith, 6 N.D. 56, 69 N.W. 5; Northwestern Improvement Co. v. Morton County, 78 N.D. 29, 47 N.W.2d 543.

By common consent that has been the practical interpretation given our statute by counsel and this court in the many actions to quiet title against clouds caused by allegedly void assessments. In many of those cases the question raised in this case' of an appeal from the board of county commissioners when sitting as a Board of Review for the equalization of assessments has existed. The court has taken unchallenged jurisdiction irrespective thereof.

As thus construed the action to quiet title becomes purely a creation of statute and affords relief within the scope prescribed by the statute. The scope of that relief is not diminished by the fact that other relief may be available in the form of an appeal from administrative action. The tax involved here constitutes a cloud on plaintiff’s title and its validity may be challenged in an action to determine adverse claims even though she had a right to appeal from the determination of the taxing authorities under the provisions of Sec. 11-1141, NDRC 1943. The motion for a dismissal was properly denied.

The only issue on the merits of the case is whether the county auditor had authority to assess the residence involved in this action as omitted property. The district court held he did not.

Sec. 57-1401, NDRC 1943, under which the auditor acted, reads as follows:

“Whenever the county auditor shall discover that:

“1. Taxable real or personal property has been omitted in whole or in part in the assessment of any year or years; or

«2. * * *

«3_ * * *

«4 * * *

he shall proceed to correct the assessment books in accordance with the facts in the case and to correct such error or omission in assessment, and shall add such omitted property and assess it at its true and full value, and if a building or other structure, assessed as real estate in the assessment thereof, is described as though situated upon a lot or tract of land other than that upon which it in fact is situated, the auditor shall correct the description and add the assessment thereof to the assessment of the lot upon which it actually is located, if the rights of a purchaser for value without actual or constructive notice of such error or omission shall not be prejudiced 'by such correction, addition, or assessment.” (Emphasis ours.)

It is conceded that the procedure of the auditor was in accordance with the statute. The only issue raised is whether the residence in question was “omitted” property.

■Sep. 57-0227, ‘NDRC 1943, reads in part: “ * * * In assessing any tract, or lot of real property, there shall be determined the value of the land, exclusive of improvements, and the value of all taxable improvements and structures thereon, and the aggregate value of the property, including all taxable structures and other improvements”.

In accordance with that statute the 1947 assessment book for Hazen City, Mercer County, provided separate columns for listing the names of the owners and for description of the property. Then follow separate columns for the assessed valuation of the “lots and lands,” of the “residential structures” and of the “total assessor’s value.” In this book the assessor after the plaintiff’s name and description of her lots, inserted in the column for “lots and lands,” the sum of $150. No entry was made in the column for valuation of the residential structures. In the column for total assessor’s value, $150 was again inserted and was the amount used in making the tax levy. The same record was made in the assessment book for 1948. The assessor made no valuation of the residence on those lots during those two years. The testimony shows that the residence was separately valued by the assessor in 1946 and 1949.

In 1952 it appears that this discrepancy came to the attention of the county auditor. He then inserted in both the 1947 and 1948 assessment books the sum of $2,575 in the column for the valuation of “residential structures” with the notation, “Entered as omitted assessment.” This was done after proper notice and hearing had been given the plaintiff and over her protest. Those assessments were reviewed, equalized and confirmed by the county commissioners. The resulting tax amounted to $129 for 1947 and $121.38 for 1948. It is the tax lien resulting from those assessments which the plaintiff is trying to have set aside in this lawsuit. The taxes levied on the $150 valuation in 1947 and 1948 were paid.

The burden of proof is on the plaintiff to show that the acts of the auditor and board of county commissioners in making this assessment are invalid. The courts will not interfere in tax matters unless clear invalidity is shown. In Shuttuck v. Smith, 6 N.D. 56, 61, 69 N.W. 5, 7, this court quotes what was said in Farrington v. New England Investment Co., 1 N.D. 102, 109, 45 N.W. 191: “ ‘Respondent attacks the validity of the tax, and the burden is upon him to establish its invalidity * * *. The presumption is that the tax is valid, and this presumption necessarily extends to every act upon which the tax in any measure depends.’ ”

In re State Line & Sullivan R. Co.’s Taxation, 264 Pa. 489, 107 A. 860, the Pennsylvania court says:

“It is not the policy of the law to permit persons to escape taxation through an omission by the assessor to place property in assessment, and, that such result may not be accomplished, courts will give a liberal construction to those acts which tend to equalization of the burden of taxation.”

In Reynolds v. Bowen, 138 Ind. 434, 36 N.E. 756, 758, 37 N.E. 962, the court lays down this principle:

“The power to assess is a summary power, and to secure uniform and just taxation, and protect the revenues of the state, both as to unscrupulous and dishonest evasion of- the law, and also in the interests of honest taxpayers, it is necessary that assessment statutes should be liberally interpreted in aid of the taxing power.”

Counsel for the plaintiff contends that the valuation of $150 assessed against the lots must be construed as including the valuation of the residence, which under Sec. 57-0204, NDRC 1943 is a part of the real estate; that the result is merely an undervaluation which the auditor had no authority to raise.

He cites in support of his contention the case of Marshall Wells Co. v. Foster County, 59 N.D. 599, 231 N.W. 542. In that case a store 'building was located on Lots 7 and 8 in Block 4 of the Village of Mc-Henry, Foster County. By mistake that building had been assessed upon Lot 5 in said block for the years from 1920 to 1924 inclusive. When the auditor noticed the error he proceeded to assess this store building against Lots 7 and 8 in accordance with Chapter 198, S.L.1925 which provided for the assessment of omitted property and is now Sec. 57-1401, NDRC 1943. The board of county commissioners reviewed and equalized the assessment made by the county auditor and instructed the auditor to cancel excessive taxes on Lot 5. The plaintiff, the owner of said lots brought an action to quiet its title against the taxes so levied. On appeal from an order of the district court overruling a demurrer this court reversed that order and held that the county auditor’s “authority is expressly limited to omitted property, and does not include the power to revalue property which has been listed and assessed by the assessor.” And while it held Lots 7 and 8 had been so listed and assessed, the court says: “It is also clear that the buildings on lots 7 and 8 were assessed against lot 5, so that none of the property was actually omitted in the assessment for any of the years involved.” In that regard the facts in the Marshall Wells Co. case differ from the case at bar. In that case the building was not omitted from the assessment rolls but was actually assessed. In the case at bar the building was not assessed at all.

The next session of the legislature following the decision of this court in Marshall Wells Co. v. Foster County, amended Chapter 198, S.L.1925, by authorizing the county auditor in case of mistakes of that kind to add the valuation of the building, which had been assessed against the wrong lot, to the assessment of the lot upon which it was actually located, in cases where innocent purchasers were not affected. That rather indicates that the legislature intended that buildings could be considered as omitted property. In commenting on thi" change this court in the case of Golden Valley County v. Greengard’s Estate, 69 N.D. 171, 284 N.W. 423, 427, said:

“In Marshall Wells Company v. Foster County, supra, this Court said that the authority which the statute conferred upon the County Auditor and the County Commissioners ‘is expressly limited to omitted property, and does not include’ the power to re-value property which has been listed and assessed by the assessor.’ Chapter 280 Laws 1931, did not in any manner change this rule, but recognized it, and retained it in force, except insofar as it prevented assessment of a building or structure that had been omitted in fixing the value of real estate.” (Emphasis ours.)

Considering the facts in the Marshall Wells Co. case and the 1931 amendment to Chapter 198, S.L.1925, the decision in that case cannot be considered as authority for plaintiff’s contentions in the case at bar.

Our Sec. 32-1701, NDRC 1943, was again before this court in the case of Golden Valley County v. Greengard’s Estate, supra. In that case the owner had reported to the assessor stock and fixtures in his store of the value of $7,068. On that valuation taxes were duly levied and paid. It was claimed by the auditor that the actual valuation of the property in the store was more than twice what had been reported by the owner and he proceeded to enter in the assessment roll the valuation that he claims should have been assessed. A tax was then levied on the excess of that valuation over that made by the owner as omitted property. It does not appear, however, that any specific property had been listed as omitted. The majority of this court held that the auditor’s action in that case amounted only to re-valuation of the property already listed and assessed.

Some Indiana cases, decided under a statute practically identical with ours, are cited in support. of plaintiff’s contention. In Florer v. Sherwood, 128 Ind. 495, 28 N.E. 71, 72, personal property consisting of moneys and credits was assessed. It was claimed the valuation was too low. The auditor increased the valuation without any specific listing of the property. The Indiana Court held: “To justify an assessment by the auditor upon property of that character, he must know of specific loans and of specific credits which have been omitted, and upon which valuations may be placed.” In the case of Woll v. Thomas, 1 Ind.App. 232, 27 N.E. 578, 580, the property involved was personal property with no specific identification. The court said: “Our conclusion is that the auditor had no right * * * to assess any property as omitted, except distinct, definite, and recognizable articles, which had not been listed and properly appraised for taxation by the assessor.” In the case of Williams v. Segur, 106 Ind. 368, 1 N.E. 707, the property attempted to be assessed as omitted consisted of notes, mortgages, choses in action and moneys without specific identification. That was also the situation in the case of Florer v. Sheridan, 137 Ind. 28, 36 N.E. 365, 23 L.R.A. 278. The facts in such cases differentiate them from the case at bar.

The case of Davidson v. Franklin Ave. Inv. Co., 129 Minn. 87, 151 N.W. 537, is cited for plaintiff. In that case a four-story concrete building was added as omitted property by the county auditor to the assessment of the lot on which it stood. The court held that this building was a part of the realty and that the failure to include it in the assessment of the realty amounted merely to an under-valuation of the realty. It will be noted, however, that the Minnesota statute, G.S.1913, Sec. 1980, M.S.A. § 273.02, provided:

‘Tf any real of personal property be omitted in the assessment of any year * * * and the property thereby escape taxation * * * the county auditor shall enter such property on the assessment and tax books for the year or years omitted”.

There is no authority for assessing property omitted in part and there is no showing that separate valuation of the lots and improvements were to be made. The building was, of course, a part of the real property so that under the wording of that statute it would be included in the assessment of the lot on which it stands. Out-statute, however, Sec. 57-1401, NDRC 1943, provides that when “taxable real or personal property has been omitted in whole or in part in the assessment of any year or years * * Further, our statute provides for the separate valuation of the residence and the lots the total to be levied against the real property. The authority granted the auditor under our statute is much more specific on the matter than the authority granted under the Minnesota statute.

That also is the situation in South Dakota where it was held in Palmer v. Beadle County, 70 S.D. 99, 15 N.W.2d. 6, that the treasurer was not authorized to assess a building as omitted property. The South Dakota statute, S.D.C.1939, Sec. 57.1002 reads: “When the treasurer, after the tax list is committed to him, shall ascertain that any land or other property is omitted,” he reports the same to the county auditor, who if satisfied, enters the same on the assessment rolls. Again there is no authority for such action by the auditor if the property is omitted only in part.

In other states, however, even where the statute is less specific than ours, it is held that:

“Where improvements on realty were not listed and assessment was based only on value of land, improvements were ‘omitted property^ which could be assessed in subsequent year.” People ex rel. McDonough v. Birtman Electric Co., 359 Ill. 143, 194 N.E. 282.

In that case the reasons are well stated:

“It is not disputed that in 1928 the land was improved with a building which had an assessed value of more than twice that of the land itself and that it was not listed and valued for assessment purposes. * * * It is the law that, in order to arrive at an aggregate assessment, whether of real or personal property, consideration must be given to the separate items which constitute the entity. * * * In the case of improved real estate, the entity is composed of two components, one land and the other buildings and improvements. If both. are listed and valued separately for assessment purposes, the assessment cannot be reviewed in a subsequent year, but, if either the land itself or the building and improvements have been omitted, then that component part which was so omitted becomes a subject of assessment for taxation in a subsequent year.” See also Union Portland Cement Co. v. Morgan County, 64 Utah 335, 230 P. 1020.

That reasoning is sound and applies to the case at bar. The evidence leaves no doubt that valuation of the residence was omitted by the assessor. The assessment books show it. The $150 total valuation shows it. That clearly included only the lots and not the $2,575 residence thereon. Our statute authorizes the auditor to assess property omitted in part. The statute divides real property into two parts, the land and the improvements and structures thereon. The residence was one part of the real property. It was not assessed anywhere. The plaintiff has not met his burden of showing the tax invalid. The auditor in adding the residence so omitted to the assessment rolls was doing his duty as provided by law. The taxes based on that assessment are a valid lien on the lot described.

The judgment of the district court is modified and the case is remanded for the entry of judgment in accordance herewith quieting title in the plaintiff subject to the lien of the taxes so levied.

MORRIS, C. J., and SATHRE, J., concur.