Sailer v. Mercer County , 75 N.D. 123 ( 1947 )

I concur in the principles stated in paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 10 of the syllabus and in those portions of the opinion prepared by Judge Burke relating to and covered by such paragraphs of the syllabus. But I have doubt as to the correctness of the rule announced in paragraph 9 of the syllabus and am not prepared to concur therein or in that portion of the opinion relating to and covered by said paragraph 9 of the syllabus. The general rule stated in paragraph 9 of the syllabus is one of importance and its effect such that "I think it desirable to state the questions that make me doubt." Justice Holmes, Ruddy v. Rossi, 248 U.S. 107, 63 L ed 151, 39 S. Ct. 46, 8 A.L.R. 843.

The lands involved in this action were sold at tax sale and purchased by the defendant Mercer County. No redemption was made and on March 1, 1940 tax deeds were issued to Mercer County. Thereafter, the lands were advertised for sale at the regular annual sale of lands acquired by tax deed required to be held, and held, by the county in November, 1940. ND Rev Code 1943, § 57-2818. At such sale the lands were sold to the defendant Temme.

There is no contention and no claim that the lands were not subject to taxation or that the taxes levied against the lands were not in every respect valid or that there was any defect in the tax sale. There is no claim that the provisions of the law were not fully complied with up to the time of the issuance and the service of the notice of the expiration of the period of redemption. The invalidity of the tax deed resulting from the want of legal notice of expiration of time of redemption of course does not affect the validity of the taxes, the tax sale or the tax sale certificates. Fish v. France, 71 N.D. 499, 2 N.W.2d 537.

The statute pursuant to which the defendant Temme purchased the land from the county provides for a sale for cash or for part cash and the balance in installments, and that if the sale is for part cash the county shall give the purchaser a contract for deed setting forth the terms of the sale. It further provides that upon payment of the purchase price in cash, or the payment of all installments with interest "the county shall execute and deliver to the purchaser a deed conveying to him all right, title andinterest of the county in and to such property." ND Rev Code 1943, § 57-2815.

The sale to the defendant Temme was for part cash and the balance in installments. The county executed and delivered to him a contract for deed whereby it sold and agreed to convey to him "by deed conveying all right, title and interest" of the county in and to the premises as of the date of the contract upon the prompt and full performance by the purchaser Temme of the agreement and the payment in full of the balance of the purchase price with interest according to the terms of the contract. The undisputed evidence is to the effect that Temme has performed his part of the contract and has made all payments stipulated therein to be made up to the time of the trial. The agreement between the county and Temme is not voided because the deed to the county is invalid for want of legal notice of expiration of the period of redemption. The law does not provide that the county shall agree to convey a valid title in fee simple. It provides that the county shall agree to convey and that it shall convey only "all right, title and interest of the county in and to such property." ND Rev Code 1943, § 57-2815. The deed which Temme will be entitled to receive from the county upon payment of the balance of the payments stipulated in the contract will operate as a transfer to him of all the interest, right and title which the county had by virtue of and in the tax sale certificates, including the one upon which the invalid tax deed purported to have been issued. McKenzie v. Boynton, 19 N.D. 531, 125 N.W. 1059; ND Rev Code 1943, § 32-3103. See also Boardman v. Boozewinkel, 121 Mich. 320, 80 N.W. 37; Leavitt v. Bell, 55 Neb. 57, 75 N.W. 524; Christian v. Lockhart, 31 N.M. 331, 245 P. 249.

A purchaser from the county acquires certain contract rights to all the "right, title and interest" of a county and where, as here, the tax deed to the county is invalid for want of legal notice of expiration of the period of redemption, the right, title and interest of the purchaser to and under the tax sale certificates may not be defeated by redemption except by one who under the terms of the law has a right to redeem.

It is undisputed that the plaintiff, Sailer, is the owner of a two-elevenths interest in fee simple in the land in controversy, and no more. The laws of this state specifically provide:

"Any person who has or claims an interest in or lien upon an undivided share of any piece or parcel of land sold may redeem such undivided share of such land by paying to the county treasurer an amount proportionate to the amount required to redeem the whole of such land, and in such case the certificate of redemption shall recite the estate or interest redeemed. Suchpartial redemption shall be made only upon compliance with theprovisions of chapter 25 of this title." ND Rev Code 1943, § 57-2605.

Section 57-2605, Rev Code of 1943, was originally enacted as § 22, Chapter 67, Laws 1897, . . . (it was also enacted as § 85, Chapter 126, Laws 1897) and this section, and in fact most of the provisions of said Chapter 67, were taken from the Laws of the State of Minnesota. (See Emmons County v. Thompson, 9 ND at p 605, 84 N.W. 385). Statutes of Minnesota 1878, Ch 11, § 92. Long before the provision was adopted in this state, the Supreme Court of Minnesota held that "the owner of an undivided interest cannot redeem the whole, but only his own estate." 2 Blackwell, Tax Titles 5th ed § 721. See Goodrich v. Florer,27 Minn. 100, 6 N.W. 452.

The provision remained in force in this state as originally enacted without substantial change until the enactment of the Revised Code of 1943. Then there was added the final sentence in said § 57-2605 which I have italicized. According to the sentence so added an undivided share may be redeemed only pursuant to an application like that prescribed by the preceding Chapter 25 where a person seeks to redeem a specific part of a larger tract that has been sold for taxes.

The plaintiff owns only a two-elevenths share. He has no property right in the remaining nine-elevenths. His property rights will be fully protected by redeeming the two-elevenths share which he owns. The statute specifically grants him the right to redeem such share. He is under no duty and under no compulsion to redeem the shares of other owners, or to make payment other than of the amount required to redeem the share which he owns. The general rule is that "no one can be entitled to go farther in redemption than may be necessary under the law for the protection of his interest." 4 Cooley, Taxation 4th ed pp 3082, 3083. And that seems to be the policy of our laws. ND Rev Code 1943, §§ 57-2501, 57-2602, 57-2604, 57-2605. As the question is one of importance, and as I have difficulty in understanding how under the laws of this state the plaintiff can have any "interest in the real estate" which will entitle him "to go farther in redemption" than to redeem the share which he owns, "I think it worth while to mention my misgivings, if only to show that they have been considered and are not shared." Ruddy v. Rossi, 248 U.S. 111, 63 L ed 153, 39 S. Ct. 46, 8 A.L.R. 843.