Axt v. Bank of America

Appellants have filed a petition for rehearing challenging the correctness of our decision determining that the notice of expiration of redemption and service thereof complied with the statute (ND Session Laws 1931, chap 285).

Appellants cite Wilke v. Merchants State Bank, 61 N.D. 351, 237 N.W. 810; Biberdorf v. Juhnke, 59 N.D. 1, 228 N.W. 233; Larson v. Clough, 55 N.D. 634, 214 N.W. 904, 54 A.L.R. 752; and Hodgson v. Finance Co. 19 N.D. 139, 122 N.W. 336. It is asserted that our decision is inconsistent with these cases and that: "In each of the cited cases this Honorable Court held that the notice of expiration must be served upon the owner, as required by the statute (supra, § 2223). No reference is made to service upon the person to whom the land is assessed."

The notice of expiration of redemption issued by the county auditor, to which the sheriff's return is attached, recites that the land was assessed in the name of F.H. Nicholson. The correctness of this statement is not challenged. There is no evidence in the case before us that indicates any change of ownership of record in Sheridan county. Therefore, F.H. Nicholson was presumptively the owner of record at the time the notice was issued. The sheriff's return shows that the notice of expiration of the period of redemption was served on F.H. Nicholson in the manner prescribed by statute. It is asserted that one Frances Hall Nicholson owned the premises and that at the time the notice was issued she had died and other persons were the owners but it does not appear that either the county auditor or the sheriff had notice of any change in ownership, if in fact such change had occurred. This court in Larson v. Clough, 55 N.D. 634, 214 N.W. 904, 54 A.L.R. 752, supra, in considering the statute now in question said: "This statute does not require that the sheriff, for his own protection, shall become an expert investigator of titles, or that he shall, in such matters, take the simple word of any one for anything."

In the case before us, service of the notice of expiration of redemption was made in the manner prescribed by statute upon F.H. Nicholson who was at that time presumptively the record title owner of the premises. Since nothing to the contrary is shown it appears that the statute has been complied with. There is no inconsistency between our decision herein and the cases cited. Rehearing denied.

CHRISTIANSON, BURR and BURKE, JJ., concur.

NUESSLE, J., concurs in the result.