#### HARRIS E. LEACH v. ROLETTE COUNTY.

(151 N. W. 768.)

Trial *de novo*of an action to recover from the county sums paid for taxes under the Wood law, which sums had been adjudged void.

Complaint — allegations — void taxes — failure to state sale void — other facts alleged — sufficient — demurrer.

1. The complaint is not demurrable for failure to state that the “sale of land” for taxes had been declared void, when it sets up facts showing that the taxes themselves had been declared void after sale.

Answer — admission of salient facts — United States courts — action in.

2. The answer of the defendant held to he an admission of the salient facts of the action in the United States circuit court wherein said taxes were set aside.

Money paid county for assignment of tax certificate — tax is. void — money may he recovered hack — taxes paid after assignment — cannot he recovered hack.

3. Under § 2338, Comp. Laws 1913, it is held that plaintiff can recover from the county the money paid upon taking the assignment from the county, with interest at the rate of 7 per cent, hut not taxes paid after taking such assignment.

Evidence — court records — judgment — exemplified copy of decree.

4. The exemplified copies of the decree which set aside the taxes were properly received by the trial court.

United States circuit court — decree of — service on county — action to avoid taxes — record — attack.

5. The decree of the United States circuit court shows on its face that service was made upon the defendant county in the action wherein the taxes were declared void, and defendant cannot in this proceeding attack the record so made.

Action to avoid taxes — holder of claim — failure to answer — does not work estoppel here.

6. In the action wherein the said taxes were declared void, one H., who at that time held such claim, made no answer, hut this fact does not work an estoppel in this suit.

Knowledge of pendency of suit — evidence fails to disclose — estoppel.

7. The evidence does not show that H. bought his claim with knowledge of the pendency of the suit in the United States circuit court, and therefore he is not estopped in the present action.

*594Dnited States circuit court — decisions oí — correctness of — state courts — will not inquire into.

8. This' court will not inquire into the correctness of the decision of the United States circuit court in its decree setting aside said taxes.

Men upon land — taxes — refund — statutes — application.

9. The last portion of § 2338, Comp. Laws 1913, relative to a lien upon thG land, has no application to the facts in this case, as the county is not held for a refund of the taxes paid after the assignment.

Opinion filed February 25, 1915.

Appeal from tbe District Court of Bolette County, *Gowan,*JV

Modified and affirmed.

*Charles A. Verret*and *Knauf &*Knauf, for appellant.

Tbe evidence, tbe decree of tbe United States circuit court offered in tbe case, fails to show that the sale of lands as provided in tbe Woods law has been declared void. There is only an attempted nullity of tbe taxes. Paine v. Dickey County, 8 N. D. 581, 80 N. W.. 770.

Having taken these taxes in tbe manner received, tbe plaintiff and bis assignor received and paid them all, tbe certificates and tax receipts, at their own risk. Tbe purchase was made under tbe rule of *caveat*emptor, and without a statute authorizing a recovery for tbe taxes. Budge v. Grand Porks,. 1 N. D. 309, 10 L.E.A. 165, 47 N. W. 390; Laws 1907, chap. 67, § 28.

Unless tbe sale is shown to have been declared void by judgment of tbe court, and tbe statutory provisions properly complied with, there is no right of recovery. Tyler v. Cass County, 1 N. D. 369, 48 N. W. 232.

*Midclaugh,*Guihbert, *Smylhe, &*Hunt, for respondents.

“Things which a person possesses are owned by him.” Eev. Codes 1905, subdiv. 11, § 7317.

This is a presumption which is satisfactory if uncontradicted. Tbe assignment, transfer, and delivery were all established by their possession and use upon this trial. Ibid.

The county did not defend the action in the’United States court. It cannot now say that Hutton should be estopped because he did not *595do so. Tbe merits and correctness of tbe decision there are not before ns in tbis case. Borden v. McNamara, 20 N. D. 225, 127 N. W. 104, Ann. Cas. 1912C, 841.

Tbe question of tbe jurisdiction of tbe United States court is not, and cannot be, before us bere. Tbe judgment there, on its face, shows service. Freeman, Judgm. § 130; Hahn v. Kelly, 34 Cal. 402, 94 Am. Dec. 742; McMinn v. Whelan, 27 Cal. 314; Carpenter v. Oakland, 30 Cal. 446.

Whatever may be tbe facts as to tbe validity of such a service, it is not a case of no service, and tbe record shows that tbe court adjudged tbe service sufficient; and tbis being a collateral proceeding, tbe judgment cannot be attacked. McCauley v. Fulton, 44 Cal. 355; Sebee v. La Grange, 78 Iowa, 101, 42 N. W. 616; Fanning v. Krapfl, 68 Iowa, 244, 26 N. W. 133; Lees v. Wetmore, 58 Iowa, 170, 12 N. W. 238; Seaman v. Galligan, 8 S. D. 277, 66 N. W. 458; Phillips v. Phillips, 13 S. D. 231, 83 N. W. 94; Ilabn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742; Sharp v. Daugney, 33 Cal. 505; Galvin v. Palmer, 134 Cal. 426, 66 Pac. 572; Van Fleet, Collateral Attack, p. 121, §§ 3, 614, 616.

A written instrument is presumptive evidence of a consideration. Eev. Codes 1905, § 5325, and cases cited.

Tbe burden of showing want of consideration is upon tbe party attacking it. Eev. Codes 1905, § 5326.

Tbis is not a case where a court of equity may require tbe repayment to tbe certificate bolder of tbe amount paid on condition that tbe tax sale be set aside, on tbe theory that tbe land should bear its lawful part of tbe taxes, for tbe reason that tbe land was not subject to taxation. State Finance Co. v. Beck, 15 N. D. 374, 109 N. W. 357; Eev. Codes 1899, § 1270; Paine v. Dickey County, 8 N. D. 581, 80 N. W. 770.

Bueeb, J.

Tbis action involves tbe refund of money paid to a county for void taxes under § 2338, Comp. Laws 1913. August 8, 1892, tbe government issued its patent to a quarter section of land in Eolette county to one Jaspard Jeanette, a homestead entryman. Prior thereto Jeanette bad given a certain mortgage to one Daly, who bad assigned tbe same to Vincent P. Cash, who in turn assigned tbe same *596to one Simmons, all of which instruments were dated prior to the issuance of the patent.

August 24, 1893, the United States government filed its bill in equity in the circuit court for the district of North Dakota, alleging fraud upon the part of the entryman, Jeanette, and asking the can-celation of the patent. Jeanette, his wife, and Daly were the original defendants, and were all served with the jurisdictional subpoena in August or September, 1893. No *lis pendens*was filed at this time, nor were any further steps apparently taken in the action until nearly ten years later. In the meantime taxes were levied against the premises for the years 1892-3-4, and on the 22d of- November, 1897, the premises were sold and bid in by the county of Bolette for the sum of $69.53, and thereafter on the 1st day of December, 1898, said tax certificate was assigned to one David Hutton by an instrument in writing signed by the treasurer of said county, said purchaser being required to pay the taxes for the year 1895-6-7, making a total of $126.66. Thereafter said purchaser likewise paid the taxes for the years 1898-1902, both inclusive, under his certificate of sale as aforesaid.

April 29, 1903, the government filed an amended bill in equity including as defendants the assignees of the mortgage, Cash and Simmons, the county of Eolette, and also Hutton. Subpoenas were served upon the new defendants in the manner which will be hereinafter mentioned, but no answer was interposed by any of them, and judgment *pro confesso*was taken on August 21, 1906. *Lis pendens*was filed April 30, 1903.

This decree canceled the patent and specifically set aside the taxes hereinbefore enumerated, upon the grounds that the land during all of the time had been the property of the United States government.

Thereafter, by an instrument in writing, the tax certificate holder, Hutton, assigned his cause of action against the county to the present plaintiff, Leach, who brings this action for a refund of the amount paid by him, basing his cause of action upon § 28, chap. 67, Sess. Laws 1897, now found at § 2338, Comp. Laws 1913, which reads as follows: “When a sale of lands as provided in this article is for any cause declared void by judgment of court, the money paid by the purchaser at the sale, or by the assignee of the state or county, upon taking *597assignment, shall, with interest at the rate of 7 per cent per annum from the date of such payment, be refunded to the purchaser or assignee or the party holding his right out of the county treasury on the order of the county auditor, . . . that if such purchaser or assignee or party holding his right, shall after such purchase or assignment from the county, have paid the taxes, penalties and interest upon such piece or parcel of land, he shall have a lien upon such piece or parcel for the amount of taxes, penalties and interest so paid, with interest at the rate by this article allowed, and may enforce such lien by action, or if he is in possession of such piece or parcel -shall not be ejected therefrom until such amount and interest shall b'e paid.” The above should not be confused with § 88, chapter 126, Sess. Laws 1897, now known as § 2200, Comp. Laws 1913, which reads as follows: “When any sale of land for taxes is adjudged to be.void, the judgment shall state the reason why it is void, and in all such cases and in cases where, by the mistake or wrongful act of the county treasurer or auditor, land has been sold upon which no taxes were due, and in cases where taxes have been or may be paid on lands not subject to taxation, or on lands where subsequent to payment the entry has been or may be canceled, the money so paid and all subsequent taxes, penalties and costs which have been or which may be paid, shall be refunded, with interest at 7 per cent per annum from the date of payment to the person making such payment, his heirs or assigns and the same shall be refunded out of the county treasury to which such money was paid, on an order from the county auditor, and a *pro rata*share of the money so refunded shall be charged to the state and to any incorporated city, town, village or school corporation which may have received any -part of such void tax. Whenever any sale of land or certificate or tax deed made or delivered under this chapter is - adjudged to be void, unless the judgment declares the tax to be illegal, the tax and all subsequent taxes returned to the purchaser or assignee, shall remain and be a lien upon the land sold, and the county auditor shall advertise and resell the same at the next succeeding annual sale for the full amount of taxes, penalties and costs due thereon.” The latter section applying to lands sold for the general taxes under the ordinary process, while the former relates to taxes sold under what is known as the Woods law, wherein an action at law is instituted by the county *598and an execution sale thereunder follows. This distinction is important. The trial court made findings of fact and conclusions of law favorable to plaintiff, and this appeal calls for a trial *de novo.*

(1) The first proposition advanced by appellant relates to the sufficiency of the complaint, it being attacked by demurrer and also by objection to the introduction of any evidence. He states: “The complaint does not state that a *'sale of land’*as provided by the law is for any cause declared void by judgment of court. We are called upon to have, not a tax, not a patent, not a judgment, but a ‘sale of land' declared void, to entitle the return of the money paid out therefor.”

The objection is too technical to have merit. The statute uses the expression *‘sale of lands*shall be declared void,’ of course, but in this case the *sale*was in effect declared void by the same language that declared the tax void.

(2) The second error assigned by appellant relates to the introduction in evidence of the assignment from the county to Hutton. There is no merit in this contention. Plaintiff, in paragraph three of his complaint, alleges: “That thereupon one W. A. Duncan, the then treasurer of said Rolette county, agreeable to the provisions of said law, did make, execute, and deliver to said David Hutton an assignment and transfer of the whole right, title, and interest of said county in and to said premises, so acquired by said county at said sale,” which said assignment of said certificate of sale bears date of December 1st, 1898.” Defendant answers as follows: “Defendant admits the allegations of the complaint set forth in paragraphs one, two, three, and eight.” The matter was therefore not at issue, having been established by the admissions of the answer.

(3) Appellant’s third proposition is that, in any event, plaintiff should recover for the taxes paid upon his certificates subsequent to the purchase by him from the county. He insists that the subsequent taxes were taken at the risk of the purchaser, and the county is not liable for redemption, and cites us to Tyler v. Cass County, 1 N. D. 369, 48 N. W. 232. The Tyler opinion, however, was filed November 29, 1890, almost seven years before the enactment of either of the above-mentioned sections, and construed § 1629 of the Compiled Laws of Dakota 1887, which section is quoted at page 386 of said opinion. It - is therefore not authority in this case, unless- possibly to hffid *599plaintiff to a strict construction of any refunding law. We are satisfied tbat plaintiff must recover, if at all, under § 28, cbap. 67, Sess. Laws 1897, known as tbe Wood law, as tbe original sale to tbe county was made thereunder, and be was not tbe purchaser at any general tax sale. Reverting to said section we find: “When 'a sale of lands, as provided in this article [meaning tbe Wood law] is for any cause declared void by judgment of court, tbe money paid ... by tbe assignee of tbe . . . county, upon taking tbe assignment, shall, with interest at tbe rate of 7 per cent ... be refunded, etc.”

As so read, it aids tbe plaintiff in this case. On tbe 1st day of December, 1898, Hutton paid to tbe county of Rolette $126.66 “upon taking tbe assignment.” This amount be was obliged to pay under tbe law to obtain tbe interest of tbe county in tbe land, and for this amount recovery should be bad with interest at 7 per cent. Tbe payments, therefore, made by Hutton for tbe years 1898 — 9, 1900 — 1—2, were not paid by tax sales under tbe general law, nor is tbe county liable therefor under tbe Wood act. As to such voluntary payments, plaintiff is entirely without remedy. In this respect tbe judgment of tbe trial court is erroneous, and must be modified.

(4) A fourth assignment of error relates to the reception in evidence of tbe exemplified copies of tbe decree entered in tbe Hnited States court. This assignment is without merit, as defendant admits in bis answer tbat such a suit bad been instituted and prosecuted to final decree “in substance, as set forth in paragraph 6 of tbe complaint, but defendant denies tbat this defendant was ever served with process.” Aside from this admission of tbe salient facts of tbe decree which plaintiff bad set forth in bis complaint, tbe copies presented were certified as correct by tbe clerk of tbe Hnited States circuit court under the seal of tbe court, and tbe whole was authenticated by tbe signature of tbe presiding judge, being substantially in compliance with § 7911, Comp. Laws 1913.

(5)- Tbe next assignment of error relates to findings of fact found by tbe trial court following tbe adjudication made by tbe Hnited States circuit court, *viz.,*tbat tbe land was- not subject to taxation, also tbat service bad been made upon Rolette county of process in tbe above-mentioned action. Tbe decree of tbe Hnited States circuit court show's On-its face tbat service was made upon tbe county on tbe 31st day of *600May 1903, and if sucb were not tbe fact the county must appear in that court and obtain relief. Defendant cannot in a collateral proceeding attack the records of that court. The same applies to the question of whether or not the lands were in fact taxable. The United States circuit court which «had jurisdiction of this matter held the same to be void, and the time for appeal from such decree had long since expired, and its correctness cannot be challenged collaterally in this action.

Freeman on Judgments, § 130, which reads: “A finding or recital showing that the court had jurisdiction is, in the vast majority of the states, not disputable when a judgment based thereon is drawn in question collaterally.” Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742; Quivey v. Porter, 37 Cal. 458; McCauley v. Fulton, 44 Cal. 355, from which we quote: “It has been repeatedly held by this court that upon collateral attack recitals in the judgment of service upon the defendant are conclusive of the question of jurisdiction of the person, when the judgment is rendered by a court of superior jurisdiction.”

Schee v. LaGrange, 78 Iowa, 101, 42 N. W. 616, from which we quote: “The record shows that the court adjudged the service sufficient; and, this being a collateral proceeding, the judgment cannot be thus attacked.” Scaman v. Galligan, 8 S. D. 277, 66 N. W. 458; Phillips v. Phillips, 13 S. D. 231, 83 N. W. 94; Emery v. Kipp, 154 Cal. 83, 19 L.R.A.(N.S.) 983, 129 Am. St. Rep. 141, 97 Pac. 17, 16 Ann. Cas. 792.

It might be stated in passing that.the only objection to the service upon the county is that the copy of the subposna was served upon the wife of the chairman of the board of county commissioners, instead of upon him personally. It might also be said that the respondent insists that Rolette county was not a necessary party to the suit in the United States court, for the reason that at the time of the rendition, of the decree said county had parted with all its interest and lands aforesaid to Hutton, who was duly served.

(6) The sixth position advanced by appellant is that Hutton, and therefore this plaintiff, is estopped to maintain this action because he-(Hutton) did not defend the suit wherein the taxes were set aside. We do not believe this is material. It is not only possible, but probable, that the claim of the United States government to the effect that the land had been fraudulently patented was true, and if Hutton knew this. *601be should not be required to file an answer.. It may also be said that the county might have defended in such suit had it believed the defense meritorious. As both plaintiff and defendant allowed a judgment avoiding the tax to be entered by default, it may well be presumed that the attack of the United States government could not be successfully resisted.

(7) Appellant next urges that Hutton cannot recover because he took the assignment and paid his money “long after the said action is alleged to have been commenced by the United States of America.” This might be successfully urged if it were supported by evidence that Hutton knew of the suit, but upon an examination of the record we find no evidence of any knowledge upon his part, and the *lis pendens*was not filed until April 30, 1903, long after the payments hereinbefore mentioned were made.

(8) It is next urged by appellant that Hutton, had he defended,, should have prevailed in the suit- in the United States circuit court. A complete answer to this is that he did not so prevail. The decree as entered is the one with which we must deal.

(9) Appellant next calls our attention to the last portion of § 2338, Comp. Laws 1913, being the fact that if such purchaser shall, after-such purchase or assignment from the county, have paid the tax, penalties, and interest, etc., he shall have a lien upon the land for the-amount of the taxes. This relates entirely to the taxes for-which, under paragraph three of this opinion, the county is not liable, and is therefore now immaterial. Moreover, in this case such section is absolutely no aid to the plaintiff, owing to the fact that the taxes themselves were swept away and the title to the land held to be in the United States government. There are other items of error so closely allied to the above that they are governed thereby, and therefore all without merit.

' The judgment of the trial court is modified, and as so modified affirmed. Respondent will recover his costs in this appeal.