Van Nest v. Sargent County

Corliss, C. J. From an order sustaining a demurx-er to four of plaintiff’s thirteen causes of action, this appeal is taken. Plaintiff is seeking to x-ecover certain sums of money paid by his assignor on tax sales, and for subsequent taxes paid in defense of his supposed tax title. He x-ests his right to restitution of this money upon the statute. Independently of the statute, the county would not be liable for moneys voluntax-ily paid to it fox-taxes under a mistake of law, whei'e no taxes wex'e due, nor could it be sued for money x-eceived by it on void tax sales. Budge v. City of Grand Forks, 1 N. D. 309, 47 N. W. Rep. 390; Tyler v. Cass Co., 1 N. D. 369, 48 N. W. Rep. 232. The statute under which plaintiff seeks to sustain his action is § 88 of Ch. 126, of the laws of 1897. It provides as follows: “When any sale of land for taxes is adjudged to be void, the judgment shall state the x-eason why it is void, and in all such cases, and in cases [141] where, by the mistake or the wrongful act of the county treasurer or auditor, land has been sold upon which no taxes were due, and in cases where taxes have been or may be paid on lands not subject to taxation, or on lands where subsequent to payment the entry has been or may be cancelled, the money so paid and all subsequent taxes, penalties and costs which have been or which may be paid, shall be refunded, with interest at' seven per cent, per annum from the date of payment, to the person making such payment, his heirs or assigns,” etc. It is very clear that two of the causes of action do not fall within the scope of this enactment. They merely set forth void tax sales because the land was exempt from taxation by reason of the fact that it was property of the United States. When the object of the suit is to recover money paid on a tax sale, as contradistinguished from money voluniarily paid in extinguishment of a tax, without any proceedings being instituted to enforce it, the sale must have been adjudged void, or the land must have been sold by the mistake or the wrongful act of the treasurer or auditor, and there must have been no tax due thereon. There is no pretence that the tax sales set forth in these two causes of action have ever been adjudged void. Nor can we agree with counsel for the plaintiff that the statute can in this respect be satisfied by praying for such adjudication in the very suit to recover back the money paid; the owner of the land not being a party thereto, and not requesting that any such judgment be rendered. It is only after the owner of the fee has obtained such adjudication that the right to sue accrues. As the land was exempt from taxation because owned by the United States, it is clear that in these two causes of action we do not have presented cases where land has been sold, by the mistake or wrongful act of the county treasurer or auditor, when there were no taxes due thereon. Tyler v. Cass Co., 1 N. D. 369, 48 N. W. Rep. 232; Iowa & Dakota Land Co. v. Barnes Co., 6 N. D. 601, 72 N. W. Rep. 1019. These observaations apply to the other causes of action, in so far as the plaintiff seeks therein to establish a liability for money paid by [142] his assignor on the sale of the land for taxes, which was exempt from taxation because owned by the United States. But these two causes of action contain other allegations. It is averred in each of them that, after making the attempted purchase of the land at the tax sale, the plaintiff’s assignor paid certain taxes subsequently assessed againt this land, which was not subject to taxation, because it was property of the United States. It is claimed that the plaintiff has a right to recover the amount paid for such subsequent taxes, without reference to the question whether the defendant is liable for the sums paid on the tax sales. It is true that the statute contains a provision that the county shall be liable for taxes paid on lands not subject to taxation. But this provision refers to the payment of taxes by the person who is the fee owner, or who claims to be the fee owner. It does not relate to a stranger who has purchased the property at a tax sale. Whatever right he is given by the act to recover taxes subsequently paid is based upon the theory that his tax title has been annulled, and that, therefore, he ought to be reimbursed, not only as to the amount paid on the sale, but also as to all subsequent taxes paid to protect his supposed interest as tax-title purchaser. Under the statute his right to recover the sum paid on the sale does not accrue until after the sale has been adjudged void, and it follows that until such adjudication he cannot recover those incidental sums, the recovery of which is dependent on the right to sue for the amount paid for the property on the tax sale. As the plaintiff’s assignor is a purchaser at tax sales, and plaintiff is seeking, as assignee of such purchaser, to compel the county to refund moneys paid on account of such sales, and for taxes subsequently assessed against the land, it follows that he cannot recover, because the sales set forth in the complaint have never been adjudged void. We fully agree with the learned District Judge that the complaint, so far as the four causes of action before us are concerned, fails to state any cause of action. The order sustaining the demurrer is affirmed. All concur.