Page:North Dakota Reports (vol. 1).pdf/393

 ter v. McCamus, 14 Wis. 333,; Straight v. Harris, id. 509; Insurance Co. v. Halsey, 8 N. Y. 271; Vanorden v. Johnson, 14 N. J. Eq. 376; Cheeseborough v. Millard, 1 Johns. Ch. 409; Jones, Mortg. §§ 982, 723, 562. The judgment of the court below annulled the foreclosure proceedings, treating the mortgage lien as extinguished as to plaintiffs. This judgment was unwarranted by the complaint, the findings, or the evidence, and must therefore be reversed, and the complaint dismissed. All concur.

, Respondent v., Appellant.

1. Taxation—Lands in Northern Pacific Grant Prima Facie Taxable, Though in Fact Not Taxable.

The defendant county, through its treasurer, sold certain lands for delinquent taxes at the annual tax-sale in October, 1885. The lands so sold were a part of the original grant by the general government to the Northern Pacific Railroad Company. The lands were surveyed at the expense of the United States, and earned, by said company after the passage of the act of congress of July 15, 1870, pertaining to survey fees; and no part of said survey fees had been repaid to the United States at the time of such sale. Prior to the assessment and levy of said taxes, for which said lands were sold, the railroad company had disposed of the lands, and conveyed them to third parties by deeds and contracts, and such third parties were in possession. Said lands were regularly assessed, and all the proceedings leading up to the tax-sale were regular. Plaintiff bought the land at such tax-sale, and brings the action to recovery the purchase money so paid. Held, that such lands were not taxable at the time of such assessment, because the United States held the fee title to said lands, and had a lien thereon for survey fees, (Railroad Co. v. Rockne, 115 U. S. 600, 6 Sup. Ct. Rep. 201;) but that, since land was a subject of taxation in Dakota Territory, prima facie these lands were taxable. Taxation was the rule; freedom from taxation the exception.

2. Same—Jurisdiction of Assessor.

Held, Further, that the assessor being a judicaljudicial [sic] officer, where property is exempt from taxation by class, and not by specific description, he has full jurisdiction, and it is his duty to decide in each instance whether or not a particular piece of property falls within any of the exempted classes, and in this respect the source of the law that establishes the exemption is immaterial.