Page:North Dakota Reports (vol. 3).pdf/105

 court is directed more particularly to the state of the pleadings with reference to defendant’s claim for judgment against- the plaintiff for the “true and just amount of taxes,” under § 1643, supra. The answer alleges, in substance, that, in addition to the amounts paid by defendant at the tax sales for the taxes of 1884 and 1886, respectively, (and concerning the regularity of which taxes issue is fully tendered by the answer,) defendant has paid taxes on the lots as follows: That defendant paid the taxes, stating the amounts, to the county treasurer for the year 1887, and paid the taxes to the city treasurer, stating the amounts, for the years 1885 and 1886. At the trial plaintiff admitted “that the defendant paid taxes on the premises described in the complaint, subsequent to the sale of said premises to him, the following sums, to-wit.” Then follow the amounts as alleged in the answer. Upon these averments of the answer and the plaintiff's admissions at the trial the question arises whether the court below should, without proof, have given judgment for such amounts paid, or for any amounts. A majority of this court is of the opinion that this question must be answered in the negative. The averments of the answer amount to this, 7. ¢., the defendant paid the subsequent taxes for certain years, and plaintiff admits that the sums were paid as taxes. But the District Court is directed by § 1643 to “ascertain the true and just amount of taxes.” This language compels the examination of the tax records with a view of ascertaining whether an alleged tax was assessed and levied. The mere payment-—and no more is alleged or admitted here—does not suffice to establish the validity of the tax. Miller v. Hurford, (Neb.) 12 N. W. Rep. 832; Brown v. Corbin, 40 Minn. 508; 42 N. W. Rep. 481; Weimer v. Porter, 42 Mich. 569; 4 N. W. Rep. 306. Counsel calls attention to the Farrington case, 1 N. D. 102, 45 N. W. Rep. 191, where a majority of this court say, at p. 120, 1 N. D., and p. 197, 45 N. W. Rep.: “Said section is mandatory upon the court, and it becomes its duty to enter up judgment for the amount of the legal tax, and such judgment in no manner N. D. R.—5.