Hodges v. McCutcheon ( 1942 )

A petition for rehearing, filed by the plaintiff in this case embraces one point which we think merits further consideration. She asserts that the right of the defendant McCutcheon to contest her title is barred by the short statute of limitations contained in § 2194 Compiled Laws of North Dakota 1913. This section is as follows: "Any person having or claiming title to or lien or incumbrance upon any land, whether in his possession or the possession of another, or vacant or unoccupied, 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, or in case of deeds heretofore issued, then within three years after the taking effect of this section, against any party, person, county, state or corporation claiming any title to or interest in such lands or lien upon the same adversely to him by or through such tax sale, tax certificate or tax deed heretofore or hereafter made, to test the validity of the tax sale, tax certificate or tax deed, or to quiet the title to said lands as against such claims of such adverse claimant, or to remove the cloud from the title arising from such 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 lands and premises described in such deed, free from all liens and incumbrances made or accrued at or prior to the date of the execution and delivery of such deed, except taxes, and such grantee may at any time thereafter maintain an action against any and all parties for the possession of such premises, and the rights of action herein given shall be governed by the same rules of procedure as rights of action given by § 8044; provided, that nothing in this section shall be construed to prevent any person holding a tax deed from beginning an action against parties claiming title to or lien upon such premises at any time after the execution of the deed, to obtain possession of such premises, or to quiet the title to such lands as aganist such adverse claimants."

While this court has never expressly held that this statute did not run in favor of a tax deed which had been issued without a valid notice of expiration of the period of redemption, it has uniformly held from the time the statute was first enacted that this short limitation does not run in favor of a tax deed which is void on its face nor which, though regular on its face, is void because of jurisdictional defects in the proceedings which lead to its issuance. Hegar v. De Groat, 3 N.D. 354, 56 NW 150; Roberts v. First Nat. Bank, 8 N.D. 504, 79 N.W. 1049; Sweigle v. Gates, 9 N.D. 538, 84 N.W. 481; State Finance Co. v. Beck, 15 N.D. 374, 109 N.W. 357; Nind v. Myers, 15 N.D. 400, 109 N.W. 335. A defect which vitiates the notice of expiration of redemption is such a jurisdictional defect. Cain v. Ehrler, 36 S.D. 127, 153 N.W. 941; Neilan v. Unity Invest. Co. 147 Iowa 677, 126 N.W. 947; Marx v. Hanthorn, 148 U.S. 172, 37 L ed 410, 13 S Ct 508.

The petition for rehearing is therefore denied.