Littel v. Phinney

Appeal — Trial De Novo — Statement of Case. In a case tried to the court without a jury this court is without authority to try the case anew unless the statement of the case embraces all the evidence. The certificate of the trial court to the effect that the statement embodies all the evidence is sufficient prima facie, but is not conclusive of the fact, where the record shows on its face that the statement does not contain all the evidence. Affirmance Without Prejudice. Applying these rules to this record, the judgment of the trial court must be affirmed, and the same is affirmed, but without prejudice to further proceedings to determine the rights of the parties with respect to the subject-matter involved in this action.

Appeal from District Court, Richland County; Lauder, J. Action by Frank E. Littel against Bunton H. Phinney and others. Judgment for defendants, and plaintiff appeals. Plaintiff’s complaint is in the short form to determine adverse claims under § 5904, Rev. Codes. Defendants counterclaimed, alleging title in themselves. The court erred in striking from plaintiff’s reply that portion pleaded as a counterclaim to defendants’ affirmative cause of action. Ejectment at common law has been abolished in most states, and the statutory action to determine adverse claims has been substituted. Holland v. Challen, no U. S. 15; Wood v. Conrad, 50 N. W. Rep. 903. Plaintiff’s counterclaim asked that the value of improvements built by him on the premises in good faith be allowed him in case his title proved invalid. Where defendant counterclaims in an action to determine adverse claims, the position of the parties is reversed, the defendant becomes the plaintiff and takes the affirmative in pleading and proof, while the plaintiff defends against the claim. Walton v. Perkins, 10 N. W. Rep. 425; O'Neil v. Tyler, 3 N. D. 47, 53 N. W. Rep. 439. Defendants should not have been permitted to introduce proof under their answer because they failed to pay or tender plaintiff legal taxes paid by him. § 1640, Comp. Laws; O’Neil v. Tyler, 3 N. D. 47, .53 N. W. Rep. 434. The assessment of several lots together, belonging to the same owner, does not invalidate the assessment. People v. Morse, 43 Cal. 534; People v. Culvenvell, 44 Cal. 620; Sanborn v. Mueller, 35 N. W. Rep. 668; Johnson Co. v. Tierney, 76 N. W. Rep. 1090; Mix v. People, 4 N. E. Rep. 783; Dodge v. Emmons, 9 Pac. 951; Wright v. Cradlebaugh, 3 Nev. 345. Where a taxpayer lists several parcels as one and they are so assessed, neither he nor his grantee can afterwards object to such assessment. Russell v. Werntc, 24 Pa. St. 337; Albany Brewing Co. v. Meriden, 48 Conn. 243; State v. Baker, 49 Tex. 763-4. Where several tracts were illegally sold together, the running of the statute of limitations will'cure a recovery by the owner. Monk v. Corwin, 12 N. W. Rep. 571; Bullís v. Marsh, 2 N. W. Rep. 442; Thomas v. Stickle, 32 la. 71; Douglas v. Tullock, 34 la. 262; Francis v. Groat, 14 Mo. App. 324; Knox v. Cleveland, 13 Wis. 245; Blackwell, § 918. The taxes being conceded as legal, should have been paid or tendered. § 1640, Comp. Laws. And plaintiff is entitled to judgment for legal taxes. § 1643, Comp. Laws. None of the objections to the deeds went to the groundwork of the tax. O’Neil v. Tyler, 3 N. D. 47, 53 N. W. Rep. 440; Farrington v. Nezv Eng. Inv. Co., 1. N. D. 102. judgment should be affirmed because it appears upon the face of the record that all the evidence offered at the trial of the action has not been incorporated into the.record. § 5630 Rev. Codes; U ,S. Sav. & Loan Co. v. McLeod, xo N. D. 111, 86 N. W. Rep. no; JCipp v. Angelí, 10 N. D. 199, 86 N, W. Rep. 706. The plaintiff conceded at the trial that the manner in which lots eight, nine and ten were listed was not in conformity to the method prescribed by the statute, and it was conceded that defendants could not avail themselves of these irregularities because more than three years had elapsed since the recording of the tax deeds. The statute under which this publication was made does not permit the treasurer-to advertise three different tracts of land together, and set opposite them a gross amount without stating an actual amount dtte against each description, and the publication cannot be for more than one year. The interest, penalty and cost of advertising must be included in the amount set opposite each description. Dever v. Cornwell, 10 N. D. 123, 86 N. W. Rep. 227; Szveigle v. Gates, 9 N. D. 538, 84 N. W. Rep. 487. The defendants alleged facts in their answer which, if true, would make the plaintiff’s title unlawful and void. No tender of payment of taxes would be necessary under those circumstances. Saimer v. Laihrop, 72 N. W. Rep.' 574, 10 S. D. 2x6; Clam v. Darlington, 63 N. W. Rep. 771, 7 S. D. 148; Powers v. Larabee, 2 N. D. 141. When the statute under which the sale is made directs a thing to be done, or prescribes the form, time and manner of doing anything, such a thing must be done, and in the form, time and manner prescribed, or the tifie is invalid, and in this respect statutes must be strictly if not literally^ complied with. W'hittaker v. City op Deadzvood, 82 N. W. Rep. 204; Chandler v. Spear, 22 Vt. 398; Cooley Taxation, 287; 2 Desty Taxation, 842.