Hodges v. McCutcheon

Burke, J. Plaintiff brought this action to quiet title to a forty acre tract of land located in McLean county. Her claim of title was derived through a tax deed to the property. The answering defendant Mc-Cutcheon was the owner of the record title to the land prior to the *151 issuance of the tax deed in question. A trial of the case resulted in a judgment quieting title to the property in the plaintiff. The answering defendant has appealed from the judgment and has demanded a trial anew of the whole case in this court. The validity of plaintiff’s deed was questioned upon two principal grounds; first, that plaintiff owed a duty to the answering defendant to pay the taxes upon the premises and that she could not after failing to make payment acquire a valid tax title against the person to whom she owed the duty, and second, that no sufficient notice of expiration of the period of redemption from tax sale was ever served upon the answering defendant. In support of his claim that it was plaintiff’s duty to pay the taxes, the defendant McOutcheon testified that in the fall of 1918 he had entered into an oral agreement with W. G. Merriam, the father of the plaintiff, according to the terms of which, Merriam rented the land and agreed to pay the taxes thereon in lieu of cash rent. Merriam denied that there was such an agreement. He denied that he used the land except that he did use a road way across it over which he drove his milk cows back and forth from his barn to his own pasture. As to the payment of taxes subsequent to 1918, the record shows the defendant tes-ified as follows: “Q. Who paid the taxes for 1919 ? “A. I don’t know. “Q. Didn’t you pay those taxes ? “A. I probably did. “Q. Prior to 1928 you paid those taxes, didn’t you ? “A. I probably did, or Mr. Merriam did. I know they were paid up to that time. “Q. Do you know who paid those taxes up to and including 1927 ? “A. I wouldn’t swear to it. No. “Q. And you may have paid those taxes yourself ? “A. I cannot say. It might be possible, but I don’t have any recollection of paying them.” Upon plaintiff’s cross-examination an attempt was made to establish that she used this tract of land jointly with her father. In answer to the questions put by defendant’s counsel she stated that some of her *152 stock ran with, her father’s stock; she denied knowledge of any agreement for the rental of the land and she corroborated her father’s statement as to the use made of it. There is no testimony in the record that anyone ever saw the stock of plaintiff or of her father pasturing upon the land. The trial court found that the answering defendant’s claim that it was plaintiff’s duty to pay the taxes upon this land was not sustained by credible evidence and we are agreed that this finding was correct. The defendant’s challenge to the sufficiency of the notice of expiration of the period of redemption is threefold. He asserts that the amount of money set forth in the notice as necessary to effect a redemption is excessive; that the stated period within which redemption might be made is less than the statutory minimum; and that the description of the property contained iff the notice is insufficient. The land in question was sold December 11, 1928, for the delinquent 1927 taxes amounting to $8.27. The amount set forth in the notice as necessary to effect a redemption was $63.98. The record shows that this amount included taxes for the two years prior to 1927 as well as for two years subsequent thereto. The amount actually necessary to redeem was the sum of the 1927 tax and subsequent taxes plus penalty and interest. Fish v. France, 71 ND 499, 2 NW (2d) 537. The notice did not disclose that taxes prior to 1927 had been included in the amount set forth therein, nor did it disclose the amount of the tax. penalty and interest for any single year. The notice thus not omy failed to state the correct amount due but also failed to give information from which the defendant could compute the amount which he might tender to effect a redemption. Such a notice was insufficient to cut off defendant’s right of redemption. Ibid. Since the notice is held to be insufficient upon this ground, it is unnecessary for us to consider defendant’s other contentions to the same end. The judgment is reversed and the case is remanded to the district churt for further proceedings according to law. Búrr, Oh. J., and Morris, Christianson, and Nuessle. JJ., concur.