Baeverstad v. Reynolds , 73 N.D. 603 ( 1945 )

I concur in the principles stated in paragraphs 3, 4, 5, and 6 of the syllabus and in those portions of the opinion prepared by Judge BURR to which those paragraphs relate.

I do not agree, however, with those portions of the opinion relating to the order of the Trial Court requiring the Defendant to make a deposit. In my opinion the provisions of § 21, chap 286, Laws 1941 requiring a deposit in certain cases do not apply to this case, and the order of the Trial Court requiring a deposit to be made was more favorable to the plaintiff than the law warranted. Chapter 286, Laws 1941 is a comprehensive enactment prescribing the procedure whereby a county may acquire tax deeds for lands that have been sold to it for delinquent taxes. It provides for the forms of notices of expiration of the period of redemption, and for the method of service of such notices. ND Rev. Code 1943, §§ 1-7, §§ 57-2801 to 57-2807.

It provides that after the expiration of the period of redemption, tax deed shall be issued to the county (in the name of the state as grantor) in the same manner as tax deeds are issued to individual purchasers at tax sales. Laws 1941, chap 286, § 9; ND Rev Code 1943, § 57-2801; Buman v. Sturn, ante, 561,16 N.W.2d 837.

It further provides for the classification and appraisal of such lands, for an annual public sale by the county of lands acquired by it pursuant to tax deed proceedings, for notice of such sale, for the manner of conducting the sale, and terms of the sale. Laws 1941, chap 286, §§ 10-14, ND Rev Code 1943, §§ 57-2810 to 57-2815.

The statute also prescribes the form of deed which the county shall execute and deliver to the purchaser. Laws 1941, chap 286, § 15; ND Rev Code 1943, § 57-2816.

The statute further provides for the sale at private sale of parcels of land that were offered, but not sold, at such public sale. Laws 1941, chap 286, §§ 17-18; ND Rev Code 1943, §§ 57-2817, 57-2818.

It also provides that the former owner or his successor in interest shall have the right to re-purchase real estate forfeited to the county under tax deed proceedings, "so long as the tax title thereto remains in the county." Laws 1941, chap 286, § 19; ND Rev Code 1943, § 57-2819.

The statute further provides: "Whenever any action at law or inequity is brought to test the validity of any deed issued anddelivered by the county to the purchaser of lands acquiredthrough tax deed proceedings, the court shall not proceed with the trial of such action until the party assailing the validity of such deed shall within the time required by the Court deposit with the Clerk 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 the defendant's statutory costs of the action, to be determined by the order of the Court." Laws 1941, chap 286, § 21; ND Rev Code 1943, § 57-4510.

The above quoted section does not refer to the tax deed from the state to the county but to the "deed issued and delivered bythe county to the purchaser of lands acquired through tax deedproceedings." This language is clear and certain. It is too clear to be misunderstood, and too certain to be susceptible of any interpretation other than the one which the language obviously indicates. It is not by any possibility open to the charge of ambiguity, indefiniteness, or obscurity.

"It must be presumed that the legislature intended all that it said, and that it said all that it intended to say. The legislature must be presumed to have meant what it has plainly expressed. 2 Lewis' Sutherland, Statutory Construction, 2d ed p 701. It must be presumed, also, that it made no mistake in expressing its purpose and intent. 26 Am. Eng. Enc. Law, 2d ed p 653. Where the language of a statute is plain and unambiguous the ``court cannot indulge in speculation as to the probable or possible qualifications which might have been in the mind of the legislature, but the statute must be given effect according to its plain and obvious meaning, and cannot be extended beyond it.' 59 CJ pp 955-957." Dickinson v. Thress, 69 N.D. 748-755, 290 N.W. 653.

"Courts only determine by construction the scope and intent of a law when the law itself is ambiguous or doubtful. If a law is plain, and within the legislative power, it declares itself and nothing is left for interpretation. It is as binding upon the court as upon every citizen." 2 Lewis' Sutherland, Stat Constr 2d ed p 706.

"It is not allowable to interpret what has no need of interpretation. To attempt to do so would be to exercise legislative functions." 2 Lewis' Sutherland, Stat Constr 2d ed p 702; McKay v. Fair Haven W.R. Co. 75 Conn. 608, 611, 54 A. 923, 924.

"``There is no safer or better settled canon of interpretation than that when language is clear and unambiguous it must be held to mean what it plainly expresses.'" 2 Lewis' Sutherland, Stat Constr 2d ed pp 701, 702.

The statute involved in this case says plainly that it is only in an action "brought to test the validity of any deed issued and delivered by the county to the purchasers of lands acquired through tax deed proceedings" that a deposit shall be required. Obviously, controversies may arise as to the validity of such deed, as for instance, in situations like that disclosed in Dockter v. Sheridan County, 72 N.D. 607, 10 N.W.2d 485, where the question arose as to whether the bidder at the public sale had acquired rights as a purchaser or whether the bid which he had made was rendered ineffective because of failure to make timely payment, so that no contract resulted, and the county still retained whatever interest it had in the land and, hence, had the right to sell the same to another party at private sale.

The statute provides for two different deeds: (1) The deed tothe county for the land acquired by the county pursuant to tax deed proceedings; and (2) The deed from the county to a purchaser of the land which the county has acquired through tax deed proceedings. These are different contracts, between different parties. The deed from the state to the county is one thing and the deed by the county to one who purchases from it is quite another. The validity of one is not dependent upon the validity of the other. The validity of a deed is not dependent upon whether there are defects in the grantor's title to the property conveyed. The right of the county to sell lands to which it has acquired tax title is not dependent upon whether the deed which the county has received is valid. The deed from the county to the purchaser, if executed and delivered as prescribed by the law, is valid and will convey all the interest that the county has in the land, even though the tax deed from the state to the county is invalid. Buman v. Sturn, ante, 561, 16 N.W.2d 837. See also State ex rel. McKenzie v. Casteel, 110 Ind. 174, 181, 182, 11 N.E. 219, 223.

As applied to a deed or other contract "valid" means "of binding force or legal sufficiency." Morrison v. Farmers Traders' State Bank, 70 Mont. 146, 225 P. 123, 125; Bouvier's Law Dictionary. "A deed, will, or other instrument, which has received all the formalities required by law, is said to be valid." Black's Law Dictionary. Webster's New International Dictionary says that in the nomenclature of the law "validity" means: "Legal strength, force, or authority; that quality of a thing which renders it supportable in law or equity; legal sufficiency; as, validity of a will, contract." The term "validity of a will" includes "only questions of the genuineness of the instrument and the testamentary capacity of the testator, including his freedom from all restraint and undue influence, and not questions as to the operation of the will." Black's Law Dictionary, 3d ed p 1797.

The provision for a deposit originated in chapter 235, Laws 1939. That statute related to and prescribed the proceedings to be had, the notices of expiration of the period of redemption to be issued and served, in tax deed proceedings as to lands that had been bid in by the county for delinquent taxes, and for the sale of lands acquired by the county pursuant to proceedings had under the statute. That statute also prescribed the form of deed to be executed and delivered by the county to purchasers of lands which the county had acquired pursuant to such tax deed proceedings, and provided that, whenever in any action at law or in equity, the validity of any such "deed is questioned, upon the pleadings or otherwise, such action shall not proceed until the party assailing such deed shall within such time as the court shall deem reasonable deposit in court for the benefit of the party claiming thereunder, an amount equal to the sum paid by said party to the county for the purchase of the property" covered by the deed together with costs and disbursements of the action then incurred by the party claiming under such deed. Laws 1939, p 298. This provision in the laws of 1935 was expressly repealed by Laws 1941, chapter 286, § 23, and in place thereof, there was inserted in said chapter 286 the above quoted § 21. It will be noted that there is a striking difference between the provisions of § 21, chapter 286, Laws 1941 and the provisions relating to the same matter in chapter 235, Laws 1939. Under the 1939 law, the requirement for a deposit became applicable whenever in any action the validity of the deed was "questioned, upon the pleadings or otherwise;" but under § 21, chapter 286, Laws 1941, the requirement for a deposit is made applicable only "Whenever any action . . . is brought to test the validity of anydeed issued and delivered by the county to the purchaser of landsacquired through tax deed proceedings." In other words, under the 1939 law, the requirement for a deposit was not restricted to an action "brought to test the validity" of a deed; it applied in any action whenever "the validity" of a deed from the county to a purchaser was "questioned, upon the pleadings or otherwise." Under the 1941 law, however, the requirement for a deposit applies only in an action that "is brought to test the validity of any deed issued and delivered by the county to the purchaser."

The character, form and object of an action is to be determined from the essential allegations of the complaint. 1 CJS 1076, 1087. This action does not purport to have been "brought to test the validity of any deed issued and delivered by the county to the purchaser of lands acquired through tax deed proceedings." There are no allegations in the complaint to indicate that the validity of the deed that was issued and delivered by the county to the purchaser is in any manner questioned, nor is the validity of such deed questioned by any allegations of fact in the answer. The answer, however, does question the validity of the tax deed that was executed and delivered to the county, and that deed, as is held in the opinion prepared by Judge BURR, is void.

Section 21, chapter 286, Laws 1941 does not require a defendant in an action to determine adverse claims to make a deposit as a condition precedent to the right to assert as a defense that a tax deed that was executed and delivered to the county is invalid. According to the clear language of the statute, such deposit is required only in an action that is brought to test the validity of a deed given by the county to the purchaser.