Schott v. Enander

*354 Morris, Ch. J. This is an action by the original owner to recover a tract of land that was forfeited to Mountrail County for nonpayment of taxes and sold by the County to the defendants on contract. The defendants appeal from a judgment quieting title in the plaintiff. The amended complaint alleges that the plaintiff is the owner and that she leased the premises to the defendants, who are husband and wife, in the spring of 1934 and from year to year thereafter for a cash rental of $25 per year payable in advance. The defendants entered into possession under the lease and paid the rent up to and including the year 1939 but failed to pay the rent for 1940 and subsequent years. The complaint further states that the land was sold to Mount-rail County on tax sale and that the defendants purchased same from the County under a contract for deed in December 1940; that the defendants concealed all of the facts from the plaintiff and the plaintiff had no knowledge thereof until the year 1941. The complaint also alleges in a second cause of action that the defendants claim certain estate or interest in said real estate adverse to the plaintiff based upon an alleged purchase from Mountrail County and sets up that the tax sale to the County and the sale by the County to the defendants are void because of certain defects in the procedure by which the County obtained tax deed. The plaintiff prays that the defendants be required to set up their adverse claims, that their validity be determined and that the same be adjudged void and that the title be quieted as against the defendants. The answer contains a general denial and the further allegation that: “Defendants admit that heretofore the plaintiff leased said land to the *355 defendant, David Enander, from year to year on a cash rental basis and admit that the defendant, David Enander, owes the plaintiff the sum of $25.00, as rental for the year 1940.” The answer also admits and alleges that Mountrail County acquired tax deed and sold the land to the defendant, David Enander, who is the owner and holder thereof and entitled to possession of the premises. The defendants pray for the dismissal of the action and for a judgment of costs and disbursements. The primary issue is the validity of the proceedings that culminated in the issuance of a tax deed to the County. The plaintiff failed to pay the second installment of the taxes for 1932 and all of the taxes for the years 1933, 1934 and 1935. At the tax sale held on December 12, 1933 the County became the purchaser and at the time of later taa sales the County became the owner of the subsequent taxes levied upon the land for the years above set forth. On May 11, 1940, the county auditor issued a notice of expiration of the period of redemption and caused the same to be published as prescribed by ch 235, N. D. Sess. Laws 1939. The notice was also served by mailing copies thereof to the following: John P. Schott, Chicago, Ill., Anna Olson, Chicago, Ill., and D. L. Thompson, Stanley, N. D. Before mailing the copies as aforesaid, the auditor requested of and obtained from the clerk of the district court and the register of deeds certified lists giving the names and addresses on record of all persons who appeared interested as owners, mortgagees, lien holders or otherwise in the land described in the notice. N. D. Sess. Laws 1939, § 1 (3) (a), c 235. The plaintiff made no redemption and tax deed was issued to the County on October 1, 1940. On December 27, 1940, the County sold the land on contract for deed to the defendants. The first contention deals with the sufficiency of the service on the plaintiff of the notice of expiration of period of redemption. The applicability of c 235, N. D. Sess. Laws 1939 is not questioned. The publication of the notice in a manner sufficient to comply with the statute is stipulated and is no longer an issue. The service by mail is strenuously challenged on two grounds. The first deals with the notice mailed to “John P. Schott, Chicago, Illinois.” It is argued that the addressee never received the notice; that it was returned from *356 Chicago by the U. S. Post Office stamped “insufficient address” and therefore such mailing was not suffiicent to comply with the statute. The legislature saw fit to provide that: “Notice shall be sent by registered mail to the owner and to the occupant or tenant in possession, if any, and also to each mortgagee, lien holder or other person interested therein as may appear from the records of the office of register of deeds and clerk of the district court. It shall be the duty of the register of deeds and clerk of the district court within ten days after request by the county auditor to furnish him with a certified list giving the mames, and so far as they appear on the records in the office of the register of deeds and clerk of the district court, the addresses of all persons who appear to be interested as owners, mortgagees, lien holders <or otherwise in such real estate which has been sold to the county for ¡taxes as may be specified by the county auditor in making such request.” N. D. Sess. Laws 1939, § 1(3) (a) c 235. In Jensen v. McHenry County, 59 ND 42, 228 NW 451, this ¡court considered the sufficiency of the service of notice on a nonresident owner under a former statute (Supplement to Comp. Laws, :§ 2202) which required the county auditor to make “reasonably diligent inquiry” to ascertain the post office address of the owner. We 'held that the service was insufficient because the county auditor did not ¡make such inquiry as the statute contemplated and we remarked, “The most natural action would be for the county auditor to ascertain from the register of deeds what was the address of the record owner.” By ¡the 1939 act, the legislature, instead of leaving it to the reasonably •diligent inquiry of the auditor to determine the address, provided ¡specifically how he should get the information and imposed upon the register of deeds and clerk of the district court the duty of furnishing the auditor the names and addresses appearing in their respective offices. In this case the statute was followed and the procedure proscribed for obtaining the address was adhered to. There was no obligation on the part of the auditor to go beyond what the statute prescribed in obtaining information as to the address of the record owner. Axt v. Bank of America, 12 ND 600, 10 NW 2d 430. The next question is whether service was made upon the occupant *357 or tenant in possession as prescribed by § 1(3) (a) ch 235, N. D. Sess. Laws 1939 quoted above. On examination before trial, David Enander testified that be leased tbe land in question in 1933 or 1934 through agents of tbe plaintiff for' $25 per year. He went into possession of tbe land and bad been in possession ever since. Lie owed rent for tbe year 1940. Tbe plaintiff never wrote him. In 1941 be received from her an envelope containing a self-addressed envelope but no message. He then wrote her, “I do not know what it is you want but since you enclosed a self addressed envelope, I thought I ought to answer. Tbe county sold the land we used to rent from you some time ago.” His letter is dated June 30, 1941. Enander bad already purchased tbe land from tbe County in December 1940. Tbe plaintiff did not learn of bis purchase until Sep,tember 1941. At tbe trial, upon direct examination, be testified that be received no notice of tbe tax deed proceedings and that one,.,D. L. Thompson, was in possession during 1940. .On cross-examination be stated that be was also using tbe land and that be and Mr. Thompson were using it jointly as pasture land. Tbe trial court found that, .“no notice of expiration of period of redemption was mailed to or served, on defendant David Enander, then in possession of said land with said D. L. Thompson.” Thus tbe trial court concluded that the defendant, David Enander, was in possession and was therefore required to be served with tbe notice of expiration of tbe period of redemption under tbe provisions of c 235, N. D. Sess. Laws 1939 and that tbe failure to serve him was fatal to tbe validity, of tbe tax deed subsequently taken by tbe County. There is no question but that Enander was tbe tenant of tbe plaintiff and entered into possession of tbe premises under bis- lease, that be continued to be her tenant up to and including 1940. He admits that be owes her tbe rent for that year. There is nothing to indicate that be relinquished possession except bis statement that D. L. Thompson, was in possession, which be promptly qualified by tbe further state-, ment that be and Mr. Thompson used tbe land jointly as pasture., This case comes to us for trial de novo. We have repeatedly held that the findings of tbe trial court in such cases are entitled to appreciable *358 weight. The record in this case does not warrant us in disturbing the findings of the trial court with respect to possession. The failure to serve David Enander with the notice of expiration of period of redemption is fatal to the validity of the tax deed obtained by Mountrail County. Anderson v. Roberts, 71 ND 345, 1 NW(2d) 338. The judgment appealed from is affirmed. Christianson, Burke, Nuessle and Burr, JJ., concur.