[File No. 6112.]

#### J. W. STURGEON, Appellant, v. W. F. KING, Respondent.

(247 N. W. 614.)

*262Opinion filed March 25, 1933.

*J. P. Gain*and *J.*IF. *Sturgeon,*for appellant.

IF. *J. Ba,y*and *Simpson, Maclcojf & Kellogg,*for respondent.

*263Christianson, J.

The plaintiff applied for a writ of mandamus to compel the defendant, as auditor of tbe county of Billings, to execute ■and deliver to him a tax deed. Tbe trial court denied tbe application .and tbe plaintiff has appealed.

Tbe plaintiff was tbe owner and bolder of certain tax sale certificates against lands in Billings county based upon tbe sale for delinquent taxes held December 11, 1928. Tbe plaintiff presented these certificates to tbe county auditor on June 26, 1931, and demanded that such auditor cause notice of expiration of time of redemption to be given. Such notice was issued and served. December 11, 1931, was fixed as tbe time when tbe redemption period would expire. The amount required to redeem was $143.73. On December 9, 1931, the ■county treasurer received a check for $104.07 from a party bolding a mortgage against tbe land. Tbe letter transmitting tbe check instructed tbe treasurer to telephone to tbe representative of tbe party seeking to make tbe redemption, in event tbe amount of tbe check was insufficient, and stated that such representative bad instructions to pay any additional sum required to effect tbe redemption. In accordance with this direction tbe treasurer telephoned such representative and it is undisputed that tbe additional sum of $39.65 was transmitted to, and received by, tbe county treasurer. Tbe sole question in controversy in tin's proceeding is whether this additional sum was received on or before December 11, 1931. It is tbe contention of tbe plaintiff that it was not received until December 12th and that, consequently, no redemption was effected and that- be is entitled to a tax deed. Tbe undisputed evidence shows that about 5 o’clock P. M., on December lltk, the plaintiff called tbe defendant, county auditor, on long distance *264telephone and inquired if a redemption bad been made and that the county auditor informed him that the additional moneys had been received and a redemption had been perfected. ■ Some days later the petitioner received a warrant from the county auditor for the redemption money. The warrant was cashed and the moneys retained for the reason, as plaintiff says, that he relied upon the statement of the auditor that the redemption moneys had been paid in time. During the latter part of January, 1932, the plaintiff had a conversation with the county auditor in regard to some other lands on which he held tax sale certificates. During that conversation the auditor intimated that it would make no difference to him if the owners of the lands were two' or three days late in payment of the redemption money; that he would accept the same anyhow. The plaintiff says he then began to have some doubt as to whether the treasurer had received the redemption money involved in this case on or before December 11, 1931. On February 9, 1932, the plaintiff saw the county auditor and the county treasurer as regards the redemption in question here and, on examination of the books of the county treasurer, found that the moneys paid for the redemption in question here did not appear in the daily cash balance of December 11, 1931, but in the daily cash balance of December 12, 1931. The plaintiff thereupon offered to return the money to the county auditor and demanded that the certificate of redemption be cancelled and a tax deed issued to him. The demand was refused and the plaintiff thereupon instituted this proceeding.

The plaintiff and the county auditor and county treasurer appeared in person and were examined as witnesses before the trial court. The trial court, in announcing his decision, prepared and filed the following “memorandum opinion: ”—

> “Plaintiff alleges the owner of the premises in question did not pay to the county treasurer on or before December 11, 1931, a sufficient sum of money to affect a redemption from the tax certificates held by him as set forth in his petition; that altho the treasurer did not receive the money until December 12th, yet the redemption receipt was issued dated December 11th. The question is one of fact. The determination of the fact whether or not the evidence shows the treasurer had received the redemption money December 11th disposes of the lawsuit.

> *265“Until tbe contrary bas been shown by tbe evidence, public officers are presumed to bave regularly performed tbeir duties and that they have obeyed tbe law in tbe performance thereof. Section 7936, subd. 15; Hanna v. Chase, 4 N. D. 351, 61 N. W. 18, 50 Am. St. Rep. 656; Fisher v. Betts, 12 N. D. 197, 96 N. W. 132; Walton v. Olson, 40 N. D. 571, 170 N. W. 107; State ex rel. Hughes v. Milhollan, 50 N. D. 184, 195 N. W. 292. Tbe burden of proof is therefore upon tbe plaintiff to produce evidence to overcome this presumption and to establish by a fair preponderance of the evidence tbe fact be contends for, to-wit: that tbe treasurer bad not received tbe redemption money on or before December 11th.

> “Tbe material facts upon this question may be summarized as follows: Tbe amount necessary to redeem' December 11th was tbe sum of $143.72. Tbe redemptioner sent $104.07 by mail to tbe treasurer which was received by her December 9th. Tbe letter accompanying this remittance stated that in tbe event said sum was not sufficient to affect tbe redemption ‘you may telephone William H. Brown Company .at Mott.’ Tbe treasurer exhibited this letter to tbe defendant who advised her tbe amount remitted was $39.65 less than tbe necessary amount to redeem. On tbe 9th tbe treasurer telephoned tbe Brown Company and advised them of tbe situation. Tbe Brown Company remitted tbe $39.65 by check, dated December 9th, enclosed with a letter of tbe same date directed to tbe treasurer. Tbe affidavit of tbe Brown Company’s manager, admitted in evidence, says that on December 9, 1931, ‘be transmitted by mail check for $39.65.’ Tbe presumption is the letter was received in due course of tbe mail. Dawson Farmers Elevator Co. v. Opp, 57 N. D. 598, 223 N. W. 350. Tbe train schedules and connections and the course of tbe mail from Mott to tbe main line of tbe Northern Pacific Railway are not shown by tbe evidence. Tbe auditor testified tbe treasurer informed him on December 11th that the money from Mott bad been received. This is not denied. Plaintiff telephoned tbe auditor December 11th inquiring if redemption bad been made, to which the auditor answered ‘yes.’ Tbe auditor made notices of redemption dated December 11th and made warrant in favor of plaintiff for $143.72. Tbe treasurer does not remember whether she received tbe remittance from tbe Brown Company on the 11th and does not remember whether on the 11th she informed the *266auditor thereof. The only evidence then tending to prove the auditor is in error in his testimony is that the entry of the redemption money in the books of the treasurer was made December 12th, which entry shows $143.72, the payment of $104.07 previously made not having been entered until that day. In this connection the treasurer testified she usually closed her books at four P. M. Any receipts after that hour were entered the day following, or when she had 'taken care of it.’ She explained this term in effect to mean when she had done that which she had to do in regard to the funds for which the money was paid. She did not explain what she did to 'take care of’ this business.

> “In January or February, 1932, plaintiff and defendant had a conversation in which defendant said he supposed the treasurer had received the money on the 11th. Inasmuch as the auditor does not personally handle the county’s money and the undisputed evidence disclosed that the treasurer had informed him on the 11th she had received the money, he had the right to assume this was true. Apparently he had not seen the money or check.

> “In my opinion the testimony clearly establishes the fact that the redemption money was paid the treasurer on or before December 11, 1931, and the peremptory writ should be denied.”

The trial court made findings in conformity with the views expressed in his memorandum opinion.

The plaintiff had the burden of proof. State ex rel. Minehan v. Thompson, 24 N. D. 273, 139 N. W. 960. The case is not triable anew in this court; the findings of the trial court are presumed to be correct and will not be disturbed unless shown to be clearly opposed to the preponderance of the evidence. State ex rel. Bickford v. Fabrick, 16 N. D. 94, 112 N. W. 74; Gotchy v. North Dakota Workmen’s Comp. Bureau, 49 N. D. 915, 194 N. W. 663. An examination of the evidence in this case leads us to the conclusion that the findings of the trial court are in accord with, rather than opposed to, the weight of the evidence. The fact on which plaintiff places great reliance, namely, that the county auditor in January, 1932 intimated to him that he intended to, and would, accept payment of moneys paid to effect a redemption from a tax sale after the date fixed for the expiration of the period of redemption, in our opinion, does not lead to the result for which plain*267tiff argues. It would seem that if the county auditor in January, 1932 was of the belief that he had authority to accept moneys paid to redeem after the expiration of the period fixed for redemption he would have been of a similar belief in December, 1931; and, hence, there would have been no reason whatsoever for his stating to the plaintiff that the redemption moneys had been paid on December 11, 1931 if they had not been so paid. There' is nothing in the record to indicate that either the county auditor or the county treasurer had any ulterior motive as regards the redemption in question here or that they were concerned with anything except the honest performance of official duty. The party who sought to make the redemption was a nonresident corporation. The plaintiff is a resident of an adjoining county. Apparently the relations between the plaintiff and the county auditor and the county treasurer of Billings county were entirely amiable. There is not a suggestion in the record that the county auditor and the county treasurer of Billings county had any reason to do anything except their duty; and, the trial court, after hearing and seeing these parties and the other witnesses who were called to testify, found that that is exactly what they did.

The judgment appealed from is affirmed.

Nuessle, Oh. J., and Burnt., Bikdzell and Burke, JJ., concur.