Page:North Dakota Reports (vol. 1).pdf/334

 ment had not been paid, was intended for the benefit of the, taxing municipalities only, and that where such municipality had received the amount of the former assessment by the sale of the assessed property, the right of such municipality to assess such property for such improvement was extinguished, and could not be reasserted, and no power of reassessment as to such property was given by such statute.

PPEAL from district court, Grand Forks county; Hon., Judge.

Cyrus Wellington and J. H. Bosard, for appellant: Many cases hold that purchaser at tax sale has no remedy if his tax title fail, but those cases, with one exception, relate to tax sales for general taxes, not to sales based, like this, on local assessments. In those cases the county or town whose officer made the sale was but an agent of the state, was not acting in its own behalf, as the city was in the case at bar: Chapman v. City, 40 N. Y. 372; People v. Chapin, 5 N. E. 64; Saulters v. Victory, 35 Vt. 350; Norton v. Supervisors, 13 Wis. 611; Phillips v. City, 31 N. J. L. 143; Waples on attachment, 543; 1 Parsons on Contracts, 462; McGoren v. Avery, 37 Mich. 120; 2 Greenleaf on Evidence, § 121; Paul v. Kenosha, 22 Wis. 266; 2 Dillon on Mun. Cor., § 938; Chapman v. Co., 107 U. S. 348; Marsh v. Co., 10 Wall. 676; Louisiana v. Wood, 102 U. S. 204; Martin v. McCormick, 9 N. Y. 331; Barton v. Supervisors, 33 Wis. 445; Clark v. Co., 9 Neb. 516; Piemental v. San Francisco, 21 Cal. 351.

The doctrine of caveat emptor does not apply in such a case, where there is a total failure of consideration and the city receives the purchase money solely for its own use.

The city, under authority of statute, gave appellant’s assignor certificates in which it was stated that he would be entitled to a deed unless the lots were redeemed ‘prior to a certain date; the law implies from an agreement to give a deed a covenant, that the deed to be given shall pass good title; Turner v. Ogden, 1 Black, 450; Brevoort v. Brooklyn, 89 N. Y. 128: Phillips v. City, supra]]. Doctrine of caveat emptor is not applied to judicial sales, void, because the proceedings were a nullity, but only where the judgment debtor had no title to the property sold: