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Stutsman County v. Wallace

142 U.S. 293 Court SCOTUS Decision date 1892-01-04 Docket No. 89 English

Delivered by Fuller C.J.

Contents

Majority — Fuller C.J.

p. 293
STUTSMAN COUNTY v. WALLACE.

Syllabus

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF DAKOTA.
No. 89.
Argued November 13, 1891.
Decided January 4, 1892.
Upon the construction of the constitution and laws of a State, this court, as a general rule, follows the decisions of its highest court, unless they conflict with or impair the efficacy of some provision of the Constitution or of a law of the United States, or a rule of general commercial law.
In the case of an appeal from a judgment of the Supreme Court of a Territory, which was admitted as a State after the appeal was taken, a subsequent judgment of the highest court of the State upon the construction of a territorial law involved in the appeal is entitled to be followed by this court, in preference to its construction by the Supreme Court of the Territory.
Following the decision of the Supreme Court of North Dakota as to' the tax-laws of Dakota Territory; Held,
(1) That an erroneous decision of an assessor of taxes under those laws' in the matter of exemptions does not deprive the tax proceedings of jurisdiction, and that, until su6h erroneous decision is modified or set aside by the proper tribunal, all officers with subsequent functions may safely act thereon; and that the rulé of caveat emptor applies to a purchaser at a tax sale thereunder;
(2) That under those laws a county treasurer, in making a sale ■ for non-payment of taxes, acts ministerially, the law furnishing .the authority for selling the property, and the warrant indicating the subjects upon which it is to be exercised; and he is protected so long as he acts within the statute;
(3) That in the case of lands granted to the Northern Pacific Kailroad Company, on which the posts of survey had not been paid and ' for which no patents had been issued, it was his duty to proceed to sell, notwithstanding those facts; and that, when the title of the purchaser at the tax sale failed, by reason of the lands not being subject to taxation,'the county was not liable for the pur- , chase money under c. 28, § 78 of the Political Code of 1877.
The rule that the known and settled construction of a statute of one State will be regarded as accompanying its adoption by another is not applicable where that construction had not been announced when the statute was adopted; nor when the statute is changed in the adoption.
The court stated the case as follows:
Appellees brought an action in the District Court for the Sixth Judicial District of the Territory of Dakota, September
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28, 1886, to recover from Stutsman County certain moneys which they had paid that county for lands which the treasurer of the county had assumed to sell- to them in satisfaction of taxes wrongfully assessed thereon, and which sale was therefore invalid. They also sought 'to recover the amount of taxes paid by them on the land after the sale; and prayed judgment for the amounts paid and interest at thirty per cent per annum thereon from the dates of the payments respectively.
The. allegations of the complaint were denied by the defendant, and the action was tried upon a statement of facts agreed to by the parties, which statement was adopted by the District Court as its findings of fact. These findings were, in substance, that the lands in question were part of the original grant by the United States to the Northern Pacific Railroad Company; that no patents had been issued for them ; that the company earned the lands after the passage of the act of Congress of date July 15, 1870, in regard to the payment of the costs of surveying;- that they were surveyed at the expense of the United States government, and no part of the cost and expenses of - the survey had at the time of the tax sale been repaid by the railroad company to the United States.; that in the year 1880 the proper officers of the county assessed all the parcels of land mentioned in a schedule attached to the complaint, marked “ A,” and levied certain taxes thereon, to wit, the territorial, county, general school, and district school taxes, amounting in the aggregate to $5500, all of which remained unpaid October 1,1882; that prior to that date the then county treasurer of that county offered the lands for sale for the nonpayment of said taxes, and for the collection of the same, and sold them to Charles S. "Wallace for sums amounting in the aggregate to $5221.75, and the treasurer then and there executed and delivered to Wallace the certificate of sale of the lands in the form provided by law to be issued upon the sale of land for non-payment of taxes, and Wallace paid the treasurer said amount; that in 1881 the officers of the county, duly authorized to assess property therein, assessed and levied taxes upon said parcels of land for the territorial, county and school taxes, and that Wallace, “ in order to protect his tax lien thereon
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and equitable title-thereto, paid to the defendant’s treasurer, as subsequent taxes upon said land, being the taxes so levied for the year 1881,” the amount of $4699.25, none- of -which taxes so levied for the year 1881 had theretofore been paid; that in 1882 the officers of the county assessed and levied territorial, county, general school and district school taxes upon the parcels of land described in the schedule attached to the complaint and marked “ B,” all of which remained unpaid October 1, 1883, and the then treasurer of the county offered the lands for sale for the non-payment of the taxes, and for the collection of the same, and sold them to Wallace for the sum in the aggregate of $6033, and the treasurer delivered certificates of sale to Wallace, and he paid the said amount.
That in October, 1884, the Northern Pacific Railroad Company brought an action against the treasurer and Wallace, wherein a- decree was entered adjudging the tax proceedings in question to be null and void, and enjoining the treasurer from making, and Wallace from receiving, any tax deed to the property named in schedule “ A,” and in September, 1885, a like action was brought which resulted in a similar decree as to the property named in schedule “ B.”
It was also found that James M. Martin had an interest in the tax receipts under an assignment from Wallace, and that prior to the commencement of this action plaintiffs tendered to the board of county commissioners of Stutsman Oounty the tax certificates in question, “ and offered to surrender said certificates to said county upon the payment of- the amount so paid by said plaintiff, Charles S..Wallace, for the purchase of said lands at said sales, and for the payment of the subsequent taxes thereon as aforesaid, together with the interest thereon at the rate of thirty per cent per annum from the dates of such payment ; ” but defendant refused to pay that sum, or any part thereof, and the whole is still unpaid-; and that no part of the land-has ever been redeemed from the sales, nor from either of them-, nor from the subsequent taxes paid as aforesaid.
The court found as conclusions of law that no taxes were due upon the.lands at the time of their sale, and that they were sold “by the mistake and wrongful act of the defendant’s
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treasurer,' the then county treasurer of Stutsman County, and that ,the plaintiffs are entitled to recover from the defendant the amount paid for said' lands at said sales and the amount-paid as subsequent' taxes thereon,- as hereinafter stated, together with thirty per cent interest thereon and on the whole amount so paid from and after the date of such payments, as hereiniafter specified, to this date,” and thereupon directed judgment in favor of plaintiffs and against. Stutsman County for $9921, with interest from and after October 1, 1882, at the rate of 30 per cent per annum, and for the amount of $6033, with interest thereon from and after October 1,1883, at the rate of 30 per cent per annum, amounting in the aggregate, .both principal and interest, to the sum of $35,800, together with costs and disbursements, and judgment was entered accordingly.
Exceptions were, duly taken and motion for new trial made and overruled. The county thereupon carried the case, on appeal:, to the Supreme Court of the Territory, by which the judgment was affirmed, whereupon an appeal was prayed and allowed to this court.
The parts of the revenue laws of the Territory of Dakota,' referred to by counsel, are given in the margin.[1]
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Mr. John, F. Dillon for appellant. Mr. Harry Hubbard was with him on the brief.
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Mr. W. E. Dodge (with whom were Mr. J. E. Baldwin, Mr. D. B. Kurtz and Mr. John 8. Watson on the brief) for appellees-.
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I. The lands sold by the. defendant’s treasurer to the respondent Wallace had not become part of the taxable prop

I. The lands sold by the. defendant’s treasurer to the respondent Wallace had not become part of the taxable prop

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erty, within the Territory of Dakota at or prior to the date of such sale. Neither the Territory nor its officers could there
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fore lawfully assume jurisdiction to tax or sell the same; and it must be conceded that the money received by the county
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treasurer for these lands, was received without authority of law; for the territorial statute, section 62, chapter 28, from, which alone the treasurer derived any authority to sell lands for taxes, only authorized him to sell “ lands, town lots .or other real property, which shall be liable for taxes.” The statute did not- and could not lawfully authorize him to sell lands which were not liable for taxes, and which consequently could not be taxed, but which belonged to the public domain-of the United States.
. The acts of the treasurer in selling the lands to the respondents were wrongful, because committed without authority of law, in violation of express ehactments, defining and restricting the treasurer’s authority and resulting in civil injury, not only to the owner of the lands unlawfully sold, but to the purchaser thereof wrongfully deprived of his. money without consideration. The statute, section 73 of chapter 28, guaranteed to the respondents that if these lands were not redeemed within two years they should, upon production of their cei’tificates of purchase, receive deeds conveying to them in the name of the Territory, all of the lands remaining unredeemed, which deeds should vest in them an absolute estate in fee simple. -
The breach of this guaranty did not arise through any defect in the tax proceedings, which the purchasers might have discovered upon an inspection of the record of such proceedings and which would bring them within the rule of caveat errvptor, but by reason of the fact that the entire proceedings from their inception were absolutely void .and without authority of law. The question in controversy, therefore, is. not one of irregularity in the assessment of the taxes levied or of the sale by the county treasurer, but is one of entire
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absence of power or authority in the taxing officers to. assess and the treasurer to collect or make sale of the lands for their payment.
The rule of caveat emptor as applied to tax sales purchases has never, to our knowledge, been held to apply to a case where there was no charge or tax due. In such case nothing passes by it to the purchaser. No right to receive or retain the money exists in the officer making the sale, and in such cases the courts have uniformly held that the purchaser, who thus paid his money and got nothing for it, should have the same returned to him. And so whenever the question has been raised, the courts have not hesitated to protect bidders at public sales, when there existed, from any cause, an entire absence of power to make the sale, refusing to enforce the payment of the bid or ordering restitution thereof. And in such a case it matters not that the officer making the sale mistakenly supposed he had full power to do so. Todd v. Dowd, 1 Met. (Ky.) 281; Washington v. McCaughan, 34 Mississippi, 304; Riddle v. Hill, 51 Alabama, 224; Boykin v. Cook, 61 Alabama, 472; Burns v. Ledbetter, 56. Texas, 282; Laughman v. Thompson, 6 Sm. & Marsh. 259; Bartee v. Tompkins, 4 Sneed, 623 ; Norton v. Supervisors, 13 Wisconsin, 611; Chapman v. City of Brooklyn, 40 N. Y. 372 ; Commonwealth Bank v. Mayor of New York, 43 N. Y. 184 ; Newman v. Supervisors, 45 N Y. 676 ; Schwinger v. Hikok, 53 N. Y. 280 ; Preston v. Boston, 12 Pick. 7 ; Corbin v. Davenport, 9 Iowa, 239 ; Phillips v. City of Hudson, 31 N. J. Law (2 Vroom) 143; Dodd v. Neilson, 90 N. Y. 243 ; Commissioners v. Young, 18 Kansas, 440; Clapp v. Pine Grove Township, 138 Penn. St. 35 .
Applying the same rule it .has been repeatedly held that taxes illegally imposed and collected may be recovered back. Slack v. Norwich, 32 Vermont, 818; Dorr v. Boston, 6 Gray, 131 ; Gillette v. Hartford, 31 Connecticut, 351.
The rule that a purchaser cannot recover the money paid by him at a void tax sale, is based upon the principle that he is a volunteer in the payment of charges levied on lands subject to taxation, and has been applied only in cases where
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jurisdiction existed and where the title of the purchaser failed by reason of non compliance with the statute causing irregularities in the assessment levy or sale as appeared by the records which were held to be constructive notice to the purchaser of such irregularities, and to this class of cases only has the rule of caveat emptor been applied. Sullivan v. Davis, 29 Kansas, 28; Lynde v. Inhabitants of Melrose, 10 Allen, 49 ; Rice v. Auditor General, 30 Michigan, 12; Logansport v. Humphrey, 84 Indiana, 467.
Assuming that the assessor had no jurisdiction of the subject matter, the treasurer was not protected by his warrant in the sale of the lands in question, and his acts were wrongful under the numerous decisions of this court pertinent to the Subject.
When a court or other officer acts without jurisdiction of the subject matter, all is void and such acts are regarded in law as nullities, constituting no justification, but all persons concerned in executing such judgments or any process predicated, thereon are trespassers and liable to an action thereon. Griffith v. Frazier, 8 Cranch, 9 ; Dynes v. Hoover, 20 How. 65 ; Erskine v. Hohnbach, 14 Wall. 613 ; Hayes v. Pacific Mail Steamship Co., 17 How. 596 .
The statute, section 78, chapter 28, political code (section 1629, Compiled Laws of Dakota) is cumulative and not exclusive. It is merely declarative of the common law rule “ that an action lies for money paid by mistake or upon a consideration which happens to fail, or for money got through imposition.” Moses v. Macferlan, 2 Burrow, 1005; Louisiana v. Wood, 102 U. S. 294 .
The States of Iowa, Nebraska, Kansas and Wisconsin had previously enacted similar statutes to the one above quoted, and while no two of them were couched in exactly the same language, they were prompted by a common object, designed to subserve a common purpose and in each instance, when.construed by the highest courts of those' States so as to give effect to the object designed by the legislature, they have received a common construction.
The statute in question (section 78 of chapter 28) had its
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origin in the statutes of Iowa q,nd exists there to-day in the same form as originally enacted. It was taken by Nebraska from Iowa and by Dakota from Nebraska. It is true that in the latter State the statute was, prior to the decisions by the Supreme Court of that State, (Coulter v. Mahaska Co., 17 Iowa, 92 ; Scott v. Chickasaw Co., 46 Iowa, 253 ; Morris v. County of Sioux, 42 Iowa, 416 ,) amended so as to read “ When by-mistake of the treasurer or other officer lands áre sold ” ete.; but those decisions clearly show that no significance was given to the words contained in the amendment by the Supreme Court of Nebraska. The Supreme Court of Dakota, therefore, in the construction of this statute followed the familiar rule adopted by this court in numerous cases, by adopting the construction of the courts of those States by whose legislatures the statute was originally adopted. The statute having been taken from Iowa and Nebraska, the legislature in adopting it, adopted the construction put upon it by the courts of those States, which construction became part of the law itself. McDonald v. Hovey, 110 U. S. 619 ; Metropolitan Railroad Co. v. Moore, 121 U. S. 558 .

after stating the case, delivered the opinion of the court.

Appellees recovered judgment for the amounts paid and thirty per cent per annum interest thereon. Interest at this rate was that which purchasers at tax sales received upon redemption, and section 78 of chapter 28 of the Political Code of the Territory of Dakota provided that the purchaser, who came within its terms, should be saved harmless, by being paid the principal and interest to which he would have been entitled if the land had been rightfully sold. Unless the recovery was justified under the statute, this judgment must be reversed.

Stutsman County is one of the counties of North Dakota, which was admitted into the Union after this cause was docketed in this court. In Tyler v. Cass County, 48 N. W. Rep. 232 , not yet published in the official reports, where the state of facts was substantially such as is disclosed by this record, the Supreme Court of the State decided that no recov

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ery could be had by the purchaser at a tax sale whose title failed, either at common law or under the section in question, which in 1885 had been amended in a point not material here, and became § 1629 of the Compiled Laws of Dakota of 1887.

It is well settled that upon the construction of the constitution and laws of a State this court, as a general rule, follows the decisions of her highest court, unless they conflict with or' impair the efficacy of some provision of the Federal Constitution or of a Federal statute or a rule of general commercial law. Norton v. Shelby County, 118 U. S. 425 , 439; Gormley v. Clark, 134 U. S. 338 , 348.

Our mandate in this case must be issued to the state Supreme Court, which will in its turn direct the state court succeeding to the District Court of the Territory to proceed in conformity to our judgment. 25 Stat. 683 .

The parties are citizens of North Dakota. The litigation proceeded upon the recognition and allowance of the exemption of-the lands from taxation under the laws of the United States, and no Federal questions were involved. Tyler v. Cass County, ante, 288. The case belongs to the class upon which the local decisions are ordinarily given controlling' effect, and the adjudication of the highest tribunal of the State in the case cited should be considered in the light of this rule, though the appeal is from the Supreme Court of the Territory, which reached the opposite conclusion.

The Supreme Court of the State held that lands which were part of the original grant to the Northern Pacific- Kailroad Company and had been surveyed at the expense of the United States and earned by the company after the passage of the act of Congress of July 15, 1870, but no part of the survey fees had been repaid to the United States, although they had been disposed of by the company and conveyed to third parties, who were in possession, were not in fact taxable; yet that, since land was a subject of taxation in Dakota Territory, prima facie they were taxable; that the assessor being a judicial official; where property is exempt from taxation by class and not by specific description, has full jurisdiction, and it is

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his duty to decide in each instance whether or not a particular piece of property falls within any of the exempted classes, and in this respect the source of the law that establishes the exemption is immaterial; that an erroneous decision of an assessor in the matter of exemptions does not deprive the tax proceedings of jurisdiction, but until such erroneous decision is modified or set aside by the proper tribunal'all officers with subsequent functions may safely act thereon; that the rule of caveat emptor applied to the plaintiff; and that there was no right of recovery at common law. It was further held that under the law in force when the tax sale in question in the case was made, the treasurer, in the matter of the collection of the taxes, was purely a ministerial officer, and when he received the duplicate tax list with the warrant of the county commissioners attached, if such process was fair on its face and contained nothing that would apprise the treasurer of any defects or infirmities, and it did not appear that the treasurer had any knowledge of any defect or infirmities, such treasurer was fully protected from personal liability in collecting the taxes upon all property contained in his list, so long as he acted strictly within the statute; that the law furnished his authority for selling the property for delinquent taxes; that the warrant with the tax list attached gave him the subjects upon which to exercise such authority; -that the statute which required the treasurer to “ sell all lands liable for taxes of any description for the preceding year or years,” meant all lands liable to taxation as shown by the process in his hands, and he could not refuse to sell lands on his list nor could he sell lands not on his list; that the sale of the lands in that case was neither the mistake nor the wrongful act of the treasurer within the meaning of section 1629, Compiled Statutes'; and that the plaintiff had no right of action under that section. And further, that section 84 of chapter 132 of the laws of North Dakota for 1890 had no application to a sale of lands made before the enactment of said chapter.

Section 1629 of the Compiled Laws is identical with section 78, chapter 2$, of the Dakota Political Code, except that in' lieu of the words, “the amount of principal and interest to

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which he would have been entitled had the land been rightfully sold,” the words, “ the amount of principal and interest at the rate of twelve per cent per annum from- the date of sale,” have been substituted. Compiled Laws, 1887, p. 362.

Section 78 is as follows : “ When, by mistake or wrongful act of the treasurer, land has been sold on which no tax was due at the time, the county is to save the purchaser harmless by paying him the amount of principal and interest to which he would have been entitled had the land been rightfully sold, and the treasurer and his sureties shall be liable for the amount to the county on his bond, or the purchaser may recover the same directly from the treasurer.”

The county is thus made liable in the first instance, “ when by mistake or wrongful act of the treasurer, land has been' sold on which no tax was due at the time,” while a personal liability to the purchaser is directly imposed upon the treasurer, who with his sureties is also made liable for the amount to the county on his bond. This statutory provision is not the same as that of the act of North Dakota of 1890, anc’ many similar State statutes, making counties generally liable to the purchaser at tax sales, when the sales are declared void. Nor is it the same as had previously existed. The law for the organization of the Territory of Dakota was passed March 2, 1861, and' on the 15th of May, 1862, an act of its first legislative assembly was approved, which formed chapter 69 of its laws, entitled, “Revenue.” (Laws Dakota, 1862, vol. 1, p. 419.).

Section 58 read thus: “ When, by mistake or unlawful ac^ of the treasurer, land has been sold on which no tax was due at tbe time, or whenever land is>sold unlawfully in consequence of any other mistake or irregularity rendering the sale void, the county shall hold the purchaser harmless by paying him the amount of principal and interest and costs to which he would have been entitled had the land been rightfully sold, and the treasurer and his sureties will be liable to the county for the amount of his official bond: Provided* That the treasurer or his sureties shall be liable only for his own or his deputy’s acts.”

The treasurer was the collector of taxes and directed to sell,

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but he Was not made liable if the sale were unlawful through mistakes or irregularities chargeable to others, but only for his own acts. When in section 78 of c. 28 of the Code of 1877, the words, “ or whenever land- is sold unlawfully, in consequence of any other mistake or irregularity rendering the sale void,” were dropped out, the proviso was also exscinded as no longer necessary.

Under it as recast the county is not ultimately to respond. The liability falls upon the treasurer in either event, but does not arise save where the treasurer is himself in fault in selling the land. The wrong arising from selling land for taxes on which no tax is due, is not necessarily the result of the mistake or wrongful act of the treasurer; and upon the facts in this record, if he were protected by his warrant and acted strictly within the statute, he could not be held nor, of course, could the county, under that section.

We agree with the learned State Supreme Court that the treasurer acted in the sale as a ministerial officer, and that while the law furnished authority for selling property for delinqent taxes, the warrant furnished the subjects upon which to exercise the authority.

In Erskine v. Hohnbach, 14 Wall. 613 , 616, Mr. Justice Field, speaking for the court, said: “ Whatever may have been the conflict at one time, in the adjudged cases, as to the extent of protection afforded to ministerial 'officers acting in obedience to process, or orders issued to them by tribunals or officers invested by law with -authority to pass upon and determine particular facts, and render judgment thereon, it is well settled now, that if the officer or tribunal possess jurisdiction over the subject matter upon which judgment is passed, with power to issue an order or process for the enforcement of such judgment, and the order or process issued thereon to the ministerial officer is regular on its face, showing no departure from the law, or defect of jurisdiction over the person or property affected, then, and in such cases, the order or process will give full and entire protection to the ministerial officer in its regular enforcement against any prosecution which the party aggrieved thereby may institute against him, although serious errors may have

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been committed by the officer or tribunal in reaching the conclusion or judgment upon which the order or process is issued.”

Things may be void as to all persons and for all purposes, or as to some persons and for some purposes, and although the assessor may have been without jurisdiction over the particular property, yet as he had general jurisdiction to list property for taxation, and there is no pretence that there was anything on the face of the wárrant to apprise the treasurer of the lack of jurisdiction, he cannot be held, in ¿xecuting the warrant, as guilty of a.wrongful act within-the intent and meaning of this statute.

The 10th section of chapter 28 shows that the warrant required the treasurer to collect the taxes therein levied according to law, and that the duplicate tax list with the warrant of the county commissioners attached was full and sufficient authority for the collection by the treasurer of all taxes therein contained. It wras his duty to proceed, and he cannot be held-to have been bound by the extrinsic fact that the costs of survey had not been paid, and that, therefore, these particular lands were not taxable.

¥e think the. conclusion-inadmissible that the legislature intended that the treasurer should be 'held responsible for the mistakes or wrongful acts of other officers, when acting in strict compliance with the exigency of the- process committed to him.

It has been ruled that where an officer knows of facts aliunde his process, which- render the proceedings void, he is not protected ; but that question does not arise here, as no such knowledge on the part of the treasurer is found; nor is there any basis for the contention that the treasurer made any mistake of fact in the premises.

It was earnestly argued that, inasmuch as by section 62 the treasurer is directed to sell all lands “ which shall be liable for taxes,” there is just as much a question of law or fact presented for his decision as is presented to a sheriff when he is directed to sell the property of a defendant on execution, or required to determine the exemption of property from execution; but this ignores the fact that the warrant commanded him to col

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lect the taxes from the specific property against which they were levied, and that he had no discretion to use, no judgment to exercise, and no duty to perform except to sell the particular property for delinquency. Buck v. Colbath, 3 Wall. 334 , 343.

Comparing sections 36, 39, and 54 of chap. 69 of the Laws of 1862 with sections 56, 62, and 73 of chap. 28 of the Code of 1877, (these will be found in the margin, ante, 298, 299,) it is contended that the legislature, in changing the language requiring the county treasurer to sell “ all lands on which taxes of any description for the preceding year or years shall have been delinquent and remain due,” so as to read: “all lands, town lots or other real property, which shall be liable for taxes of any description for the preceding year or years, and which shall remain due and unpaid,” and adding the words: “And no taxable property shall be exempt from levy and sale for taxes,” must be assumed to have intended to impose upon the treasurer the duty of determining in each instance- whether or not the property was taxable, and that this view is confirmed by the amplification of the clause requiring the treasurer to execute a deed to the purchaser. We do not think so. If, as the state Supreme Court remarks, the treasurer must disregard his warrant and sell no property not liable for taxes, even though the same appeared on his list, it would be equally true that he must sell all lands that were liable for taxes, although the same did not appear on his list.

Under section 37 of chap. 28 of the Code of 1877, as under section 1593 of the Compiled Laws, the clerk was directed to prepare a list which should contain all the taxable lands in the county with the names of the persons or parties in whose name each subdivision was listed, and also a duplicate of the tax list when completed, and, retaining one, to deliver the other to the treasurer, and to these lists the warrants are attached. The clerk makes the list from the assessment roll after the taxes are levied, and can no more change it than the treasurer can ; and the order is to sell lands shown to be liable by being upon the list.

By section 56 it was provided that taxes due from any

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person upon personal property should be a lien uppn any real property owned by such person or to which he may acquire a title; and hence the argument that the amendment of section 39 of chap. 69 of the Laws of 1862 by section 62 of chap. 28 of the Code of 1877, was objectless except upon the basis of appellee’s contention, is completely answered by the Supreme Court in pointing out that in order to give effect to the provision relative to the lien on realty of taxes on personalty, it was necessary to direct all lands to be sold that were “liable for taxes of any description.”

The language, of section 73 of chapter 28 of the Code of 1877, that a tax deed shall run “ in the name of the Territory,” and “ shall vest in the grantee an absolute title in fee simple, in such land,” whatever weight may be attached to it in a different connection, contributes nothing to sustain the position that where such title fails, recovery can be justified under section 78.

It is said that section 78 had its origin in a statute of Iowa, was thence taken into the statutes of Nebraska and by the Territory of Dakota from Nebraska, and several decisions of the highest courts of Iowa and Nebraska are referred to as giving the provision a construction differing from that of which we approve. We do not find that any decisión of that tenor had been announced prior to the adoption of the provision by the legislature of Dakota, and the rule that the known and settled construction of a statute of one State will be regarded as accompanying its adoption by another, is inapplicable. And the terms of the statutes of Iowa and Nebraska considered 'in the cases cited, were so different from that involved here, as to deprive the decisions of the weight which might justly be ascribed to them if they had argued and disposed of the precise question before us.

The judgment is reversed and the eause remcmded to the ■Supreme Court of the State of North JDalcota for fu/rther proceedings in conformity to law.

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