Tyler v. Cass County

Action by Richard S. Tyler against Cass county, Dak. T., to recover money paid at a tax-sale of lands. Judgment for plaintiff, which was reversed in the supreme court of North Dakota. To review the latter decision, plaintiff brings error. Dismissed.

STATEMENT BY MR. CHIEF JUSTICE FULLER.

Plaintiff presented a claim to the board of county commissioners of Cass county, Dak. T., to recover moneys paid by him as the purchase price of certain lands sold by the county treasurer for delinquent taxes at a tax-sale in 1885. The claim was rejected, and plaintiff appealed to the district court of Cass county, where the cause was tried upon an agreed statement of facts without a jury, and resulted in a judgment in favor of the plaintiff. The defendant preserved proper exceptions to the rulings and action of the court, and carried the case by appeal to the supreme court of the territory.

After the admission of North Dakota as a state, the appeal was heard and decided by the state supreme court, which had succeeded to the jurisdiction of the territorial supreme court. The opinion will be found reported, in advance of the official series, in 48 N. W. Rep. 232. The judgment below was reversed, with instructions to dismiss the case, and thereupon a writ of error was taken out from this court.

Counsel agree that the facts appearing of record are substantially as follows: That the lands in question were part of the original grant by the United States to the Northern Pacific Railroad Company; that the company had, prior to the levy and tax-sale, disposed of said lands to private parties by deeds and contracts, and such parties were in possession; that no patents had been issued; that the company earned the lands after the passage of the act of congress, approved July 15, 1870, in regard to payment of the cost of surveying; that they were surveyed at the expense of the United States government, after the date of the act, and no part of the cost and expense of the survey had been repaid by the company to the United States; that in 1884, and prior thereto, the taxing officers of Cass county assessed the lands, and levied taxes thereon, which remained unpaid October 6, 1885, on which date the treasurer of the county proceeded to sell them for delinquent taxes, and plaintiff became the purchaser; and it was to recover the purchase money so paid that the action was brought. No question is made as to the regularity of the tax-sale, or the proceedings leading thereto.

John F. Dillon and Harry Hubbard, for motion.

''Wm. H. Francis'', for opposition.

[Argument of Counsel from page 289 intentionally omitted]

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.