Page:North Dakota Reports (vol. 1).pdf/395

 '''8. Section 84, Chapter 132, Laws 1890, Not Retroactive.'''

Section 84, c. 132, of the laws of North Dakota for 1890 has no application to a sale of lands made before the enactment of said chapter.

PPEAL from district court, Cass county; Hon., Judge.

S. B. Barlett, A.C. Davis and J. A. McEldowney, for appellant: In absence of a statute the maxim caveat emptor applies to the fullest extent to purchaser of tax-title. Cooley on Taxation, (2d Ed.) 546; Devlin on Deeds, vol. 2, §§ 1349-51; Black on Tax Titles, §§ 263, 269; Blackwell on Tax Titles, §§ 53, 66, 67, 442; Desty on Taxation, vol. 2, p. 1011.

To bring the case within the statute, the sale must have occurred by the mistake or wrongful act of the treasurer; but he makes no mistakes, and commits no wrong in pursuing the command of his tax warrant. Cooley, 797; Desty, vol. 2, p. 689; Sprague v. Birchard, 1 Wis., 457; Bird v. Perkins, 33 Mich. 28. The statute makes the tax-list, with the warrant attached, full authority to the treasurer to collect all the taxes therein contained.

Charles A. Pollock, also for the appellant: The treasurer is a ministerial officer, the warrant is his authority and must be strictly pursued: Desty, vol. 2, p. 685. The mistake, in this instance, was made by the assessor. To construe the statute so as to allow a recovery in such a case, would also render the treasurer and his bondsmen liable, and result in making it impossible for a treasurer-elect to secure bondsmen.

Jesse A. Frye, on behalf of Stutsman county, filed a brief on reargument of the case, for appellant: There are no findings showing what part of money received at tax-sale belonged to the county, nor how much of it had been paid over to the school districts. The words "by the mistake or wrongful act of the treasurer," must be allowed some force; they were placed in the statute to limit the cases in which recovery could be had. They are placed first in-the section, and are the emphatic words of the section.

An examination of the revenue law establishes the fact that it is left to the assessor to determine what property is liable to taxa-