rejecting argument that, “since the notice of expiration of the period of redemption was published as required by law no one was prejudiced by the failure of the county auditor to mail the redemption notice to the record title owner”
How later courts described this case
- rejecting argument that, “since the notice of expiration of the period of redemption was published as required by law no one was prejudiced by the failure of the county auditor to mail the redemption notice to the record title owner”
- holding the defense of laches cannot be sustained when a party can be restored to his former status
Written by the judges who cited it.
The opinion
On Petition for Rehearing.
SATHRE, Judge.
A petition for rehearing has been filed by the respondent in which it is strenuously argued that the principle of law embodied in Section 57-2705, NDRC 1943, as amended by Chapter 276 of the Session Laws of 1951 was overlooked in the opinion prepared herein. The county auditor’s deed to Williams County of the real property involved in this action was issued October 1, 1941. At that time Section 2206, Compiled Laws of North Dakota of 1913 was in force and effect. That Statute is identical with Section 57-2705, NDRC 1943 as amended by Chapter 276 of the Session Laws of 1951. The last clause of said Section reads as follows:
“Such deed shall be conclusive evidence of the truth of all facts therein recited and prima facie evidence of the regularity of all the proceedings from the assessment and valuation of the 'land by the assessor up to the execution of the deed.”
It is contended that that portion quoted is a rule of evidence which has been prescribed by the legislature and is binding upon the court where timely objection has been made to the reception of evidence which tends to refute the factual recital contained in the tax deed. The tax deed contains the fpllowing recitations:
“And it appearing that such real property has not been redeemed from such sale.; that notice of the expiration of the right to redeem from such sale has been given, as required by law; that ninety days have expired since the completed service of such notice; that proof of legal notice of expiration of the period of redemption has been filed in the office of the County Auditor as required by law”.
This court has held that under the provisions of Section 2206, Comp.Laws of 1913, a tax deed executed by the county auditor is “ ‘prima facie evidence of the regularity of all the proceedings from the assessment and valuation of the land by the assessor up to the execution of the deed.’ ” Twedt v. Hanson, 58 N.D. 571 , 226 N.W. 615, 618 ; Peterson v. Reishus, 66 N.D. 436 , 266 N.W. 417 , 105 A.L.R. 724 ; Axt v. Bank of America, 72 N.D. 600 , 10 N.W.2d 430 .
It follows therefore that such prima facie proof may be overcome by clear evidence that the notice of expiration of period of redemption had not been served in the manner and form required by statute. It has been pointed out in the opinion herein that in the tax deed proceedings had by Williams County there was an absolute failure of compliance with the statutory requirements for service of the notice of expiration of the period of redemption. The recitation in the tax deed that the notice of the expiration of right to redeem from such sale had been given as required by law was prima facie evidence only and became ineffective when the tax deed proceedings showed affirmatively that there had been an absolute failure of service of the notice of expiration of period of redemption in the manner required by law.
Section 2206 of the Compiled Laws of 1913, which is identical with Section 57-2705, NDRC 1943 as amended by Chapter 276 of the Session Laws of 1951 was in force and effect until adoption of the Revised Code of North Dakota in 1943. During the effective date thereof the question as to the necessity for service of the notice of expiration of period of redemption has been considered by this court on many occasions and we have invariably held that the statutory requirements for service of such notice must be strictly complied with. *849 Biberdorf v. Juhnke, 59 N.D. 1 , 228 N.W. 233 ; Messer v. Henlein, 72 N.D. 63 , 4 N.W.2d 587 ; Davidson v. Kepner, 37 N.D. 198 , 163 N.W. 831 .
Rehearing denied.
BURKE, C. J., and MORRIS and GRIM-SON, JJ., concur.
JOHNSON, J., did not participate.