Page:North Dakota Reports (vol. 3).pdf/102

 quoted are in part contradictory of each other. The former requires payment or tender of taxes as a condition precedent to an action to “avoid” a tax deed; the latter provides that in an action “to invalidate or cancel” such deed a judgment shall be rendered for “the true and just amount of taxes due upon such property.” These provisions cannot be harmonized entirely, and we are convinced that it would be a harsh and unreasonable interpretation of the language used to hold that § 1640 alone must govern. To do so would not only compel the plaintiff, who has a just cause of action upon the merits, to go out of court without the relief he is seeking, but would likewise imply that § 1643 is meaningless, and must be ignored. We are convinced that a less rigid construction would be, on the whole, more conducive to justice, and more in accord with sound legal principles. We therefore conclude that the terms of § 1640 of the statute above quoted must be confined to cases where the plaintiff concedes the validity of the tax, or a part thereof, and that neither tender nor payment will be required in suits where the legality of the entire tax is controverted in good faith. The powers of the court, trammeled as they are by crude and self-contradictory legislation, cannot be put forth as fully as they might be done by a court of equity when unfettered by legislation. The most that can be done, while aiming to do justice, is to give such a construction to discordant statutes as will tend to give some effect to their provisions, and not to annul them entirely. With these objects in view, we must overrule this point, and refuse to dismiss the action.

Respondent’s counsel contends, however, that neither of the sections above quoted have any application to this case, because, as he argues, the action is not in strictness an action to either “cancel” or “avoid” a tax deed, and contends that the action is statutory in its nature and origin, and is nothing more than a challenge to the defendant to bring forward his claim, or be debarred from any interest or title to the lots in question. This suggests a wide field for discussion, upon which we do not deem