Paine v. Germantown Trust Co.

PHILIPS, District Judge,

after stating the case as above, delivered the opinion of the court.

Discussion as to the validity of the deed based on the assessment for the year 1891, on valuation of 1890, is rendered unnecessary, as counsel for appellant concedes in his brief that the description of the land given in said assessment and the amount based thereon “were absolutely void, and for the purpose of this appeal it may be eliminated from consideration.”

The tax certificate issued November 20, 1896, based on tax of 1895, assessment roll of 1894, is assailed for invalidity of description of the land. The assessment roll is as follows:

“Real Property Assessed for the Township of Dablen, County of Nelson, and State of North Dakota for the Year 1894. , Owners’ Name. Description. Sec. or Lot Twp. or Range. Blk. F. W. Iddings N. W. 1-4 9”

It will be observed that under the heading “Twp. or Range” the description is blank. Neither township nor range is given. The validity of this assessment is controlled by the decision of the Supreme Court of North Dakota in Sheets v. Paine, 10 N. D. 103 , 86 N. W. 117 , involving the claim of this same appellant to lands in the same county, under a description in the assessment roll better, if anything, than the one in question. Notwithstanding in that case the assessment list itself, perhaps, was sufficient to show that Andrew Lewis, the reputed owner of the land, owned land in sections 18 and 19, and although these sections were located in township 150, range 58, yet the assessment, tax certificate, and deed based thereon were held to be absolutely void, because “it is impossible to determine by an inspection of this assessment either town or range in which the lands in question are situated.”

Counsel for appellant seeks to differentiate the case under review *530 from that by directing attention to the fact that the land here is designated by the caption in the assessor’s book, to wit, “Real Property Assessed for the Township of Dahlen, County of Nelson, and State of North Dakota for the Year 1894.” Aside from the suggestion made in appellee’s brief that the assessment roll in the Sheets Case contained a like heading, and has caused to be filed here a certified copy of the record in that case from the clerk’s office of the Supreme Court of North Dakota showing that fact (which we need not consider), it is to be assumed that the assessor’s book, giving a list of the names of the owners and the lands set opposite their names, naturally had some heading as to the proper name of the township in which the land was situated. The name of “Dahlen” would not, ipso facto, advise the court of the congressional township and range in which section 9 was located. In the Sheets Case the defendant,.as in this case, undertook to cure the infirmity on the face of the description by evidence aliunde to the effect that the lands opposite the name of Lewis were in fact in township 150, range 58. The appellant here sought to show by parol evidence that Dahlen township embraced the government surveyed township 154 of range 57. Of this the court said in the Sheets Case:

“To cure this glaring omission in the assesment, the defendant, against objection, introduced oral evidence tending to show that the lands opposite the name of Andrew Lewis were in fact located in congressional township numbered 150 of range 58. This evidence was wholly incompetent to supply a radical defect in description in an assessment. An assessment of land is required to be written in a public record, and all subsequent steps in the process of laying the tax relate back to such written description. This rule is no longer open to debate in the courts of this state. In Power v. Bowdle, 3 N. D. 107 , 54 N. W. 404 , 21 L. R. A. 328, 44 Am. St. Rep. 511 , this court said: ‘There can be no such thing as a parol assessment of land. The law requires a definite record, and no other evidence of the assessment is competent.’ To this may be added that the rights of a purchaser at a tax sale are fixed at the time of his purchase, and his title depends upon the validity of the proceedings had anterior to the purchase. Nor can his rights be enlarged by any evidence introduced to supply fatal omissions which constitute defects which are fundamental and jurisdictional to the tax.”

Contention in the Sheets Case was made, as in the brief of appellant here, that the statute gave such force to the certificate of purchase at the tax sale as. to limit the grounds of attack, such as do not include the method adopted by appellee. Of this the court said:

“Appellant’s counsel cites section 72, c. 132, p. 404, Laws 1890, and argues that the deed can only be attacked upon grounds named in said section as grounds upon which a tax sale can be attacked. The tax sale and certificate are not directly assailed in this case. The certificate has merged in the deed, and has been surrendered, and defendant stands on a tax deed. He has no rights which are assured by the certificate. But the certificate issued on the sale would, upon grounds already stated, be as worthless and inoperative as the deed, and, upon the proof in this case, would therefore be ineffectual as a lien if no deed had been issued. * * * The sale and tax certificate issued thereon are void, and said certificate is therefore not a lien upon the lands in suit. It is beyond the power of the Legislature to either transfer land or incumber it by a lien under the pretense of a sale for delin-. quent taxes in a case where no valid tax has been assessed or levied.”

*531 In answer to the contention of the defendant in that case that, as he had redeemed the lands from such sale, he was entitled to have the sum paid created as a lien on the land superior to that of the plaintiff, the court said:

“The defendant had no right to make such redemption or to pay such taxes, other than the rights which he acquired under the tax deed and tax certificate, which have been considered and held to be worthless.. The defendant, therefore, was, as to these lands, a mere volunteer. He may have paid the taxes and redeemed the land in good faith, but this does not change his legal relation to the land; nor does such good-faith payment enable the court in this action to fasten a lien upon the lands superior to the plaintiff’s mortgage lien. Defendant’s remedy, if any, is against the county.”

In respect of the assessments of the lands for 1897-98, the description was held by the Circuit Court to. be sufficient. There was, therefore, left to be considered only the objection made by appellee that the levy by the State Board of Equalization was made in percentages, instead of specific amounts. It had been the established holding of the Supreme Court of North Dakota, when this suit was brought, that a levy of taxes made by county commissioners in percentages rendered the sales and deeds based thereon absolutely void. Wells County v. McHenry, 7 N. D. 246 , 74 N. W. 241 ; Dever v. Cornwell et al., 10 N. D. 123 , 86 N. W. 227 . It was, therefore, apparently natural for the profession to assume that this ruling applied as well to the action of the State Board of Equalization. But, pending this suit, the Supreme Court, in Fisher v. Betts, 96 N. W. 133 , differentiated the action of the assessment made by county commissioners from that of the State Board of Equalization, and held that a levy in percentages by the latter is valid. Without discussing the reasons for this distinction, it is sufficient that the statute is so construed by the Supreme Court of the state, which ruling this court will follow.' It results, therefore, that there was no error in the action of the Circuit Court in adjudging the tax deed for taxes levied for the year 1891, and the tax certificates issued on the «taxes for the year 1895, to be invalid.

The only remaining question to be considered is as to that part of the decree which, after finding that the tax certificates held by appellant for sales made in 1898 and 1899 are valid, ordered that on the payment of the taxes paid on said land by appellant, together with all penalties and interest, amounting in the aggregate to $201.96, within five days after entering the decree, the appellant should stand perpetually enjoined, etc. It appears that, pending this suit, notwithstanding the bill alleged that appellant was threatening to have the auditor issue a warning order fixing a time for the redemption of the land, and that the appellant was seeking to obtain a deed which would foreclose the right of the appellee to redeem, the appellant did cause said auditor to issue such warning order for the foreclosure of appellee’s right of redemption, whereby the appellant claims that the right to a deed has ripened. The insistence of appellant now is that, when the Circuit Court found the last certificates of sale valid, the only decree it could make was a dismissal of the bill as to such certificates, thereby remitting the *532 appellee to the operation of the statutory method of redemption, feeling assured that in the present status of the case the day of grace is gone for redemption.

A court of equity, with its plenary power for administering exact justice, will not permit such a coup de main as attempted by appellant, pending the controversy within its jurisdiction, to obtain-such an unconscionable advantage. The appellee had the right to appeal to the court to have the validity of the tax deeds and certificates determined and annulled, if invalid, as casting clouds-on its title. As to several of them, the court rightly found they were invalid, and decreed their annulment. The state of the rulings of the local court at the time the suit was brought was such as to warrant the belief that the appellee in good faith assailed the validity of all of the certificates. Recognizing the obligation of him who seeks equity to do equity, the complainant-below very properly stated in the 22d paragraph of the bill:

“That in case it shall be adjudged and determined that any of the claims-of the defendant, Paine, to said real estate on account of taxes paid thereon by him, or on account of tax certificates thereon held by him, or otherwise, are valid, that it stands ready and willing to repay to said defendant any and all sums and amounts paid out by him on account thereof, with reasonable interest thereon.”

And in the prayer of the bill (paragraph 24) it is stated:

“That in case any of the claims or demands of said defendant, Paine, for or on account of taxes paid upon said premises, or tax certificates or demands-held by him against the same, be declared valid, that your orator be permitted to pay and discharge the same, with reasonable interest. And your orator asks for such other and further relief in the premises as may be just and proper.”

What more could the appellee do? Its bill challenged the validity of the taxes. It could not be known until the end of the litigation what amount, if any, would be required to be paid. The bill, therefore, offered to do all the appellant could have rightly demanded at the time'it was filed; that is, to pay to him whatever amount of taxes, interest, and penalties the court might find to be justly due to the appellant. The decree, when made, had relation back to the status of the rights of the parties as they existed when the-suit was instituted, and no intermedial act of the appellant, dehorsthe court, could intercept its operation. A court of equity, after acquiring jurisdiction over the parties and subject-matter, does not administer justice by halves. It stops not short of adjusting to a. finality the full rights and interests of both parties which pertain to the subject-matter brought by the bill and the answer within its-jurisdiction, and “thus do complete justice to all the litigants, whatever may be the amount or nature of their interest, in the single-proceeding, and thus bring all possible litigation over the subject-matter within the compass of one judicial determination.” Pomeroy’s Equity, vol. 1, pars.. 181-242.

The decree of the Circuit Court is affirmed, with directions, on-entering the mandate herein, to allow the appellee five days there *533 after in which to pay the sum awarded, by the decree appealed from, to be paid to the appellant.