author: JOHNSON, Judge. MORRIS, Judge BURKE, Chief Justice.

text:
    August F. ZENKER and Christina Zenker, Plaintiffs and Appellants, v. B. E. WINDER; D. W. Crawford; C. D. Neff; Mel Silverman; Glen B. Hake; Fred W. Lausen; John L. Simpson; Lorch Folz; Henry S. Jacobus, Jr.; Wm. H. Tyler; Mrs. Veronica Harris; Magnolia Petroleum Company, a corporation; A. A. Horwitz; Wm. P. Oldom; Gordon G. Clark; James Danaher; Tom Danaher; John Fowler; Fowler Farm Oil Corporation; Pauline McKinnon, a feme sole; Sinclair Oil and Gas Company, a corporation; S. D. Johnson; The Atlantic Refining Company, a corporation; J. D. Leftwich and Carl E. Maxey, and all other persons unknown, having or claiming to have any estate or interest in, or lien or encumbrance upon the property described in the complaint, Defendants and Respondents.
    No. 7482.
    Supreme Court of North Dakota.
    Feb. 23, 1955.

      J. K. Murray, Bismarck, August Doerr, Napoleon, for plaintiffs and appellants.
    Cox, Pearce & Engebretson, Bismarck, for defendants and respondents.
   JOHNSON, Judge.

This is an action to quiet title to 620 acres of farm land in Logan County and 540 acres in Stutsman County, North Dakota. The real object and purpose of the action was to obtain a declaration that two oil and gas leases and mineral deeds given by the plaintiffs were fraudulent and void. The plaintiffs had entered into two oil and gas leases in favor of the defendant, B. E. Winder, and into two mineral deeds in favor of D. W. Crawford. All these instruments were executed at the same time.

The action was tried to the court without a jury. After presentation of the evidence in this case and twelve other cases, involving similar facts, and the consideration of briefs filed by the parties, the court rendered and filed a memorandum decision declaring the oil and gas leases and the mineral deeds fraudulent and void.

After the memorandum decision had been filed declaring the oil and gas leases and the mineral deeds void, the plaintiffs made a motion requesting the trial court to modify its decision and to enter a judgment declaring that the mineral deeds were void and further declaring that the oil and gas leases were valid, and thus permitting the plaintiffs to retain all the moneys received by them at the time of the execution of these instruments, or received by them as subsequent delay rentals.

In its opinion the trial court in dealing with this and the other cases involving similar facts, required the plaintiffs to return all moneys received in this transaction. The trial court in this connection said:

“The court reaches the conclusion that the signature of the plaintiffs was obtained by misrepresentation and fraud. The execution of the oil lease and the mineral deed was one transaction. Plaintiffs have offered to return all moneys received in connection with the transaction. The court will require the plaintiffs to pay into court for delivery to the defendant Crawford all moneys received, either at the time of the transaction, or for a renewal of leases. When such payment has been made, the court will order judgment in favor of the plaintiffs and against the defendants setting aside the leases and the mineral deeds in each case.”

The pleadings show that this action was started on the theory that the oil and gas leases and mineral deeds involved were obtained by fraud. It was tried on the same theory. The complaint of the plaintiffs contains a tender to the defendants, B. E. Winder and D. W. Crawford, of the consideration paid at the time of such leases and deeds, towit, ten dollars each, which the complaint declares “is an inadequate consideration.” In the prayer for relief the plaintiffs ask: “that said leases and deeds be declared fraudulent and void and can-celled of record.” The complaint in this action was never amended. It stands as it was originally drawn and filed. The plaintiffs testified to substantiate the allegations of their complaint. They offered to bring into court all moneys which they had received at the time of the execution of .the instruments or later deposited to their credit. The defendant, Crawford, gave one check for the oil and gas leases and mineral deeds. No evidence was presented as to what was paid for each type of instrument. The testimony amply bears out that the plaintiffs offered to tender the money back that they had received for the oil and gas leases and the mineral deeds. August F. Zenker testified in that connection as follows:

“Q. Have you tendered that money back in your complaint ? A. The first check ?
“Q. Yes. A. Yes.
“Q. Are you ready and willing and able now to pay that money into court if he clears up your title to the property? A. Yes.
“Q. But you want him to give you and the other .plaintiff a quit-claim deed back to your land? A. Yes.
“Q. And a release from this lease? A. Yes.
“Q. Someone who has a hand in it? A.. Yes.
“Q. And you have tendered that in your complaint? A. Yes.
“Q. Now you said that he put some more money in the bank for you? A. Yes.
“Q. Did you tell the bank you were taking that money out? A. It is a separate deposit there.
“Q. You are not going to take it out? A. No.
“Q. You don’t want it? A. No.
“Q. You want your land cleared? A. Yes.
“Q. In this case you want your title to your land quieted and cleared against all the defendants with reference to a deed and lease? A. That is right.
“Q. You want them all wiped out? A. Yes.”

This- examination was conducted by the attorney for the plaintiffs.

With the record in this condition, the plaintiffs served a notice of motion which in their brief is denominated as, “Motion to Invalidate Mineral Deeds Only.” The notice of. motion states the following grounds:

“1. That there is no evidence in the record sufficient to invalidate the lease;
“2. That there is hereto attached a release signed by the plaintiffs releasing all claims as to the invalidity of the lease or leases involved in the action;
“3. That the execution and delivery of the lease was and is a separate transaction from the execution and delivery of the mineral deed; that the undisputed evidence conclusively shows that the mineral deed was not only procured by fraud but it was that type of fraud which constitutes .a forgery.”

The notice of motion further states that it is based upon the evidence and that reference may be had to the court reporter’s shorthand notes, upon the release attached to the notice and upon all the records and files- in the action. It further recites, “that no findings of fact, and no order for judgment has been signed, nor has any judgment been entered; that all that has been done is a memorandum opinion handed down by the court holding both the deed and the lease invalid and requiring the plaintiffs to pay back to the defendants all the money received, as a condition precedent to the entry of judgment.” Attached to the notice of motion is a document entitled, “Release of Claim of Invalidity of Lease.” Omitting its formal parts, it states:

“Whereas, the above entitled action has been tried, and a memorandum decision written by the presiding Judge dated the 15th day of July, 1953; and
“Whereas, no judgment has yet been ■entered and the plaintiffs and their attorneys are of the opinion that, with reference to the lease, the plaintiffs got what they bargained for and that there is no evidence, in the record with reference to ■ the procuring of the lease by fraud;
“Now, Therefore, the plaintiffs do hereby release the defendants from any and all claims of fraud in connection with the procuring of the plaintiffs’ signatures to the lease involved in the above entitled action, but merely claim fraud in connection with the procuring of the plaintiffs’ signatures to the mineral deed involved in the above entitled .action.”

This document is dated January 15, 1954, and signed by the plaintiffs in this action.

The court denied the motion. It said:

"The plaintiffs now seek by this motion to retain such fruits of the transaction as they desire to retain and to have the court declare void such fruits of the transaction as they would like to avoid. The original case was not started on any such theory, was not tried upon any such theory, and was not submitted upon any such theory.”

The order denying the motion is dated March 27, 1954. The plaintiffs appealed to this court from the order denying the motion and specify as error the denial thereof. They base their right of appeal on subsections 1 and 5 of Section 28-2702, NDRC 1943. The defendants move for a dismissal of the appeal on the ground that the order is not appealable under subsections 1 and 5 of Section 28-2702 of the NDRC.

The merits of this action are not before us. The sole and only question for decision is whether or not the unusual procedure here taken by the appellants is ap-pealable under either of the subsections cited and mentioned above.

The right of appeal is purely statutory. Anderson v. Bothum, 77 N.D. 678, 45 N.W.2d 488. Section 28-2702, NDRC 1943, provides what orders are appealable. The right of appeal under that section has been before this court in a great many cases. Our review of such cases would serve no purpose. None of the cases deal with a situation similar to the case at bar. The appellants cite no authority as precedent for the procedure taken.

The right of appeal exists in such cases, and only in such cases, as are prescribed by law. Ellingson v. Northwest Jobbers Credit Bureau, 58 N.D. 754, 227 N.W. 360; Burdick v. Mann, 59 N.D. 611, 231 N.W. 545. In the case of Dean v. Smith, 50 N.D. 638, 197 N.W. 589, 590, this court said in dealing with an appeal from certain interlocutory findings and conclusions of the trial court in an accounting action:

“This court has heretofore held that an order to be appealable under subdivision 1, § 7841, C.L.1913, must not only be an order affecting a substantial right, but must also be an order which in effect determines the action and prevents a judgment from which an appeal may be taken. Persons v. Simons, 1 N.D. 243, 46 N.W. 969; Whitney v. Ritz, 24 N.D. 576, 140 N.W. 676. Hence, a mere order for judgment is not appealable. Ellis v. George, 43 N.D. 408, 175 N.W. 623; Olness v. Duffy, 49 N.D. 933, 194 N.W. 113; In re Eaton, 7 N.D. 269, 74 N.W. 870. So an order refusing an application for judgment upon the special findings and general verdict of a jury is not appeal-able, since the order does not determine the action or prevent a judgment from which an appeal might be taken. (Persons v. Simons, supra).”

There is no question that the record amply bears out the conclusion reached by the trial court in its memorandum decision upon the motion filed by the plaintiffs and appellants', that the action was instituted and tried on the theory that the oil and gas leases and the mineral deeds were fraudulent and void. We have heretofore quoted the specific prayer of the plaintiffs asking that they be so declared and cancelled of record. The evidence heretofore set forth indicates conclusively that the plaintiffs offered to pay into court all of the moneys that they had received at the time of the transaction or subsequent thereto. They wanted their title cleared of the leases and the mineral deeds. The trial court granted them the relief they had asked. After granting them such relief, and after having won the action on the theory that they had presented to the trial court, the plaintiffs decided that they did not want what they had asked for in the first place. This action, therefore, presents the peculiar situation that the plaintiffs and appellants obtained and were granted exactly what they asked for and on the basis of what they had offered to do and still they are dissatisfied. Can they now, before entry of any judgment and based solely on the memorandum decision of the trial court, and the trial court’s order refusing to modify the same, claim that the order, affects a substantial right? Surely these appellants cannot contend that a substantial right has been affected when they obtained the relief they requested. Neither have they shown that the order in effect determines the action and prevents a judgment from which an appeal may be taken. They have the right to appeal from any judgment entered by the court in this action, and may attempt to show that two transactions were involved, and further attempt to show that the evidence 'does not bear out the conclusion reached -by the trial court. It is no hardship upon them that during such period they deposit in court the money that they received from the defendant, Crawford. If they prevail on the merits in event of an appeal, the money they now seek to retain will revert to them. The order appealed from is not appealable under subsection 1, Section 28-2702, NDRC 1943.

The next point is to determine whether the order involves the merits of the action or some part thereof. Subsection 5 of Section 28-2702, supra, was considered in the case of in In re Glavkee’s Estate, 75 N.D. 118, 25 N.W.2d 925. There the court quoted from the case of Bolton v. Donavan, 9 N.D. 575, 84 N.W. 357, 358, as follows:

“The term ‘merits,’ as used by the profession, when applied to actions, usually denotes the subject or grounds of an action as stated in the complaint, or the grounds of the defense as stated in the answer; and a trial of the merits of an action generally means the elicitation of evidence in support of the averments of fact set out in the pleadings. But the courts, in construing statutes governing appeals from interlocutory orders, have frequently enlarged this meaning and have held that the phrase ‘involves the merits’ must be so interpreted as to embrace orders which pass upon the substantial legal rights of the suitor, whether such' rights do or do not relate directly to the cause of actioji or subject-matter in controversy.”

See also Schutt v. Federal Land Bank of Saint Paul, 71 N.D. 640, 3 N.W.2d 417; Swiggum v. Valley Inv. Co., 73 N.D. 422, 15 N.W.2d 862.

In the case at bar the strict legal rights of the parties had been determined favorably to the plaintiffs. The pleadings and the evidence clearly show that the plaintiffs and appellants obtained the relief that they were seeking. The plaintiffs and appellants seek to change the entire theory of their. action and in effect to obtain a release therefrom and from the offer that they made in open court. They have prevailed upon the merits. The order of the trial court is not appealable under subsection 5 of Section 28-2702, NDRC 1943.

It follows that the motion of the defendants must be granted. The appeal is dismissed.

JOHNSON, GRIMSON and SATHRE, JJ-, concur.

MORRIS, Judge

(concurring specially).

I concur in the result reached by the opinion prepared by Judge Johnson. This is an action tried to the court without a jury. ■

“Upon the trial of any question or issue of fact by the court, its findings of fact arid conclusions of law, and' direction for entry of judgment in accordance with such conclusions must be given in writing and filed with the clerk * * ” Section 28-1601 NDRC 1943.

Section 28-1604 NDRC 1943 provides:

“The judge may direct either or both parties to prepare findings of fact, unless they have been waived, and may direct .that the same he served upon the opposing party. ■ Either party may submit to the court proposed findings' of fact and may submit a brief statement of reasons why he desires findings upon the points included within the findings prepared by himself,.or why he objects to findings upon the points included within the findings prepared by his adversary. The judge may adopt, modify, or reject the finding so submitted. If the judge does not direct the preparation. of findings, or those prepared are rejected, then he must prepare the findings.”

The trial court prepared a memorandum in which he discusses the facts and states his conclusion with reference to the disposition of the case. He then says:

“The attorneys for the plaintiffs will draw findings, conclusions, and order for judgment in each case, and will submit the same to the attorneys for the defendants five days ‘ before submitting to the Court, and if the attorneys for defendant have any objection to the form of the proposed findings and order, these objections may be made known to the Court.”

The plaintiffs then made the motion resulting in this appeal in which they asked for the entry of a judgment different from that which would be entered if findings, conclusions of law, and order for judgment were made in accordance with the trial court’s memorandum. This motion; in effect, asked the trial court to alter the memorandum in material respects. Plaintiffs’ motion further recites:

“That no findings of fact and no order for judgment has been signed, nor has any judgment been entered; that all that has been done is a memorandum opinion handed down by the Court holding. both the deed and the lease invalid ancl requiring the plaintiffs to pay back to the defendants all the money received, as a condition precedent to the entry of' judgment.”

Plaintiffs’ motion was accompanied by a document entitled “Release of Claim of Invalidity of Lease” in which the plaintiffs released the defendants from any and all claims of fraud in connection with procuring their signatures to the lease involved in the action, and then stated:

“Wherefore, the plaintiffs pray that the Court modify the Memorandum Decision written on the 15th day of July, 1953, so as to invalidate the Mineral Deed only.”

This appeal is from the order of the trial court denying the application to modify the memorandum opinion. The order does not affect a right of the appellants, substantial or otherwise, for they have no right to require the court to change his intention which has not become final. No order for judgment has been entered. An. order for judgment is not appealable. Smith v. City of La Moure, 77 N.D. 658, 44 N.W.2d 789; Great Northern Ry. Co. v. Mustad, 76 N.D. 84, 33 N.W.2d 436; Olness v. Duffy, 49 N.D. 933, 194 N.W. 113; Malherek v. City of Fargo, 49 N.D. 123, 190 N.W. 176; Dibble v. Hanson, 17 N.D. 21, 114 N.W. 371; In re Weber, 4 N.D. 119, 59 N.W. 523, 28 L.R.A. 621. An order for judgment must first j be reduced to a judgment before an appeal can be taken.

“It is obvious that before an ap-' peal can be taken the trial court must decide something; that is to say, there must be a decision, a judgment or order. The opinion of the court — in other words, its reasons for coming to the conclusion it has — is not a decision for the purpose of taking an appeal therefrom.” Bancroft’s Code Practice and Remedies, Section 6291.

This is an attempt to control the decision of the trial court before the decision has been rendered in the manner prescribed by our statutes. The court has directed findings to be prepared. The motion'which results in this appeal seeks to secure a modification of that direction. By this appeal the appellants would have us direct the trial court'-to modify his memorandum as to how the findings should he prepared. In other words, this court and not the trial court would direct what judgment was to be entered by the trial court before he had made a final determination or entered an order for a judgment from which an appeal could be taken under our statutes. Not only is such a procedure not contemplated by the statutes, but it seeks action on our part that exceeds the power of this court as an appellate tribunal. '

BURKE, Chief Justice.

I concur in the foregoing opinion by Judge MORRIS.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lloyd LEE, Plaintiff and Appellant, v. AAA NORTH DAKOTA AUTOMOBILE CLUB, Defendant and Respondent.
    No. 7373.
    Supreme Court of North Dakota.
    March 3, 1955.
    Lanier, Lanier & Knox, Fargo, for plaintiff and appellant.
    Nilles, Oehlert & Nilles, Fargo, for defendant and respondent.
   PER CURIAM.

In this action plaintiff sought to recover from the defendant under a contract of employment which he alleged entitled him to commissions upon certain business done by the defendant after plaintiff’s employment with the defendant had terminated. In its answer the defendant denied that its contract with the plaintiff obligated it to pay him any commissions after his employment had terminated, alleged that the contract was not in writing; that if the contract had been as alleged by plaintiff it was not to be performed within one year and was unenforceable under the statute of frauds; and alleged full payment to the plaintiff of all compensation due him as an employee of the defendant. The case was tried to a jury in the District Court of Cass County. By agreement of the parties, after defendant’s motion for a directed verdict had been denied, a special verdict' was submitted to the jury. The question submitted was, “Did the terms of employment or contract of the plaintiff by the defendant provide that" plaintiff should receive commissions on renewals after the termination of his employment or contract on March 1st, 1950?” The jury answered this question in the affirmative. Thereafter the defendant moved for judgment notwithstanding the verdict or in the alternative for a new trial. After hearing upon this motion the trial court granted the motion for judgment notwithstanding the verdict and pursuant to the order of the trial court, judgment in favor of the defendant for the dismissal of the action was entered. Plaintiff has appealed from the judgment.

The defendant, The North Dakota Automobile Club, is an affiliate of the American Automobile Association. It is engaged in the business of furnishing special services and accident insurance to its members. The services are furnished in consideration of the payment of an annual membership fee: The insurance is optional and may be secured by members upon payment of an additional sum as a premium. The defendant first employed the plaintiff for the purpose of securing members and writing insurance, on December 18, 1945. All agree that under his first contract of'employment he was to receive $3 commission on each new membership sold by him, $1 commission on each renewal membership sold by him, $1 commission on each new or renewal of additional insurance sold by him and the sum of $200 a month for expenses. This .agreement continued in effect until April 1, 1949.

Sometime in 1948, plaintiff presented to M. J. Connolly, Executive Secretary of the defendant, a proposal for a change in the method of computing his compensation. At that time according to the plaintiff, Mr. Connolly was not- interested in making a change but stated that he would discuss the matter later with Mr. R. J. Hughes, presi-dént of the defendant. In the early part of 1949, the plaintiff and the defendant, by its officers, Connolly and Hughes, agreed to a new plan of compensation for the plaintiff.- - The- new plan was to become effective April 1, 1949. It is agreed by all parties that the plan was as is set forth in the unsigned memorandum which was received in evidence as plaintiff’s exhibit “7”. This exhibit is as follows:

. ‘‘Commission Contract With Lloyd Lee
For each and every club membership from 1 to 4,999 $1.00
“ “ “ “ “ “ “ 5,000 “ 7,499 . .75
“ “ “ “ “ “ “ 7,499 “ 9,999 .50
“ “ “ “ “ over 10,000 .25
“ “ “ “ additional insurance policy .25
Credit to be given for every club membership and insurance policy regardless of how acquired. Actual expenses to be paid by the club. Effective date — April 1, 1949.”

The plaintiff testified, that at the time the, new arrangement was adopted, M-r. Connolly told -him that, while he would suffer some immediate reduction in income under the new plan, in the long run it would be to his advantage. Mr. Hughes and Mrs. Connolly testified that plaintiff was told that the new arrangement would be adopted temporarily to see how it would work out. Plaintiff denied that anyone ever told him that the new arrangement was a temporary one. There is, however, no testimony in the record as to what the duration of the agreement was to be and plaintiff’s exhibit “7” makes no mention as to the time within which it was to be in effect. Both parties agree-that the employment of plaintiff by the defendant was terminable at will by either party, and plaintiff stated that exhibit “7” contained the entire agreement between him and the defendant.

In February 1950, Mr. Connolly notified the plaintiff that defendant would like to have him consider a straight salary of $500 a month with necessary travel expenses. The plaintiff refused to consider the offer and he was then notified that his employment with the defendant would terminate on March 1, 1950. It is conceded by the plaintiff that the defendant was paid in full all compensation due him as of the date of the termination of his employment. It is his contention however that, under his contract of employment, - he , is entitled to commissions upon all subsequent renewals of club memberships and insurance by all persons who were club members during the terras of his employment contract and that such commissions will be due him from year to year for as long a time as persons, who were members during the term of his employment, continue to renew -such memberships or insurance.

As has been stated, the jury found the contract to be as was contended, by the plaintiff.

Since this is an appeal from a judgment notwithstánding the verdict, the first question for decision is whether defendant was entitled to a directed verdict at the time the motion for a directed verdict was made. Nicholson v. Roop, N.D., 62 N.W.2d 473; Weber v. United Hardware & Implement Mutuals Co., 75 N.D. 581, 31, N.W.2d 456; Bormann v. Beckman, 73 N.D. 720, 19 N.W.2d 455. This question in turn is dependent upon whether the evidence, when viewed in the light most favorable to the party against whom the judgment notwithstanding was entered, presentí any substantial issues of fact for the jury to determine. Bormann v. Beckman, 73 N.D. 720, 19 N.W.2d 455; La Bree v. Dakota Tractor & Equipment Co., 69 N.D. 561, 288 N.W. 476.

We have searched the record and find no substantial conflict in the evidence. It is true that there are some conflicts but they are immaterial in so far as a decision in this case is concerned. Defendant’s officers testified that they told the plaintiff that the contract of employment which became effective April 1, 1949, was temporary in character. Plaintiff denied that such statements were -made to him but stated that the contract could.be terminated at will by either party. Certainly if he understood that the contract could be terT minated at will, it is immaterial whether he was told it was a temporary agreement or not. Likewise, whether Mr. Connolly told the. defendant, that by accepting the contract he would suffer a temporary loss but would gain in the long run, is. immaterial. Such a statement would permit an inference that it was contemplated that plaintiff should remain in defendant’s employ for a considerable though indefinite, period of time, but plaintiff does not contest the right of the defendant to terminate his employment. This statement would not1 justify an inference that plaintiff would have any claims upon the income of the defendant after his- employment had been terminated.

Plaintiff’s exhibit “7” was an unsigned written proposal submitted by plaintiff to defendant. It was accepted by the defendant and contains the terms of the contract between the parties. This contract provides that plaintiff shall receive for his compensation a commission on every membership and every insurance policy written by the company. The memorandum contains no provisions as to the duration of the employment and no provisions with respect to renewals of either memberships or insurance. It contains no mention of any agreement that plaintiff could acquire rights in defendant’s business which would continue after his1 employment had ended. Furthermore, plaintiff has testified to no conversations with the officers of the defendant concerning either renewals of a continuing interest in the business of the defendant which might be considered to supplement the written memorandum and thus form a part of the contract. In fact plaintiff testified that the written memorandum constituted the entire contract between the parties.

This memorandum provides that plaintiff shall receive as compensation commissions on all business done by the .company without regard to how the business was- acquired or whether the business was -a renewal of a former membership or insurance contract. .If it was to have any effect-after the termination of plaintiff’s employment, it could only have one effect, and that would be to. continue to entitle the plaintiff to commissions on all of the defendant’s business from year to year for as,long as defendant remained in business. Plaintiff concedes that such a ridiculous result was not intended.

We are satisfied, therefore that there was no substantial, evidence to support the verdict-and that the judgment notwithstanding the verdict was properly granted and entered. It is therefore unnecessary to decide the other questions raise on t is appea .

The judgment of the district court is affirmed.

BURKE, C. J., and MORRIS, SATHRE and GRIMSON, JJ., concur.

JOHNSON, J., did not participate.


author: SATHRE, Judge. SATHRE, Judge.

text:
    Henry STROM, Effie Shearon, Ruth Stuart, Erwin Strom, Robert Strom and Mabel Kong, Plaintiffs and Appellants, v. Olaf GISKE, A. M. Fruh, Thomas W. Leach, Carl Thompson and Williams County, a Municipal Corporation and Sub-Division of the State of North Dakota, Defendants and Respondents.
    No. 7352.
    Supreme Court of North Dakota.
    Dec. 17, 1954.
    Rehearing Denied March 15, 1955.

      Swendseid & Bekken, Stanley, N. D., Lashkowitz & Lashkowitz, Fargo, N. D., for appellants.
    Eugene A. Burdick, Williston, N. D., for-respondent Olaf Giske.
    Strutz, Jansonius & Fleck, Bismarck, N. D., for respondents A. M. Fruh, Thomas W. Leach and Carl Thompson.
   SATHRE, Judge.

This is an action to determine adverse claims brought by the plaintiffs against the defendants to quiet title to the following described property situated, in the county of Williams and State of North Dakota:

The south half of the Northeast quarter and the West half of the Southeast Quarter of Section Thirteen, Township One Hundred Fifty-five, Range Ninety-six.

The complaint is in the statutory form. The defendant Olaf Giske answered alleging that he was the owner of the land described in the complaint; that he acquired said land through a tax deed from Williams County, and demanded judgment quieting title in him. The defendants A. M. Fruh, Thomas W. Leach and Carl Thompson answered claiming their interests by virtue of a mineral deed and oil and gas leases from the defendant Olaf Giske. The validity of their claims is dependent upon the validity of the title of the defendant Olaf Giske. The defendant Williams County did not answer and made no appearance. The case was tried to the court without a jury at Williston, North Dakota before the Hon. Roy. A. Ilvedson, Judge of the District Court. The trial, Court found for the defendants quieting title in them in accordance with their respective claims, ,and plaintiffs appealed from the judgment. -

Before argument on the merits defendants moved for dismissal of the appeal upon the following grounds:

1. That it affirmatively appears from the files certified to the Supreme Court by the Clerk of the District Court of Williams County, North Dakota, that proof of service of the Notice of Appeal, as to Defendants A. M. Fruh, Thomas W. Leach, and Carl Thompson, necessary adverse parties, was not filed in the .office of the Clerk of the -.District Court of Williams County, North Dakota, within six (6) months after the service of the Notice of Entry of Judgment in this action, as required by NDRC (1943) Sec. 28-2705.
2. That Appellants Effie Strom, Ruth Stuart, Edwin Strom, Robert Strom and Mabel Kong, have failed to serve and file their undertaking on appeal as required by NDRC (1943) Sec. 28-02705 and Sec. 28-2709, and serving and filing of an undertaking on appeal not having been waived.

With reference to the first ground urged we have examined the record and we find that counsel for plaintiffs admitted service of Notice of Entry of Judgment April 25, 1952; that counsel for defendant Olaf Giske admitted service of the Notice of Appeal and Undertaking on Appeal on October 20, 1952 and that the endorsement of the clerk of the'district court shows that the same wére filed in his office on October 22, 1952, which would be within six months after service of Notice of Entry of Judgment. Counsel for defendants A. M. Fruh, Thomas W. Leach and Carl Thompson admitted in writing service of the Notice of Appeal and Undertaking on Appeal on October 22, 1952. The endorsement made by the clerk o.f the district court on the written admission of service shows that it was filed in his office October 30, 1952. It appears therefore that the notice of appeal and undertaking on appeal were served upon all of the defendants within the six months allowed for appeal.

Section 28-2705, NDRC 1943, prescribes the procedure for taking appeals and is as follows:

“An appeal must be taken by serving a notice in writing signed by the appellant or his attorney on the adverse party and filing the same in the office of the clerk of the court in which the judgment or order appealed from is entered, stating the appeal from the same, and whether the appeal is from the whole or a part thereof, and if from a part only, specifying the part appealed from. The appeal shall be deemed taken by the service of a notice of the appeal and perfected on service of the undertaking for costs, or the deposit of money instead, or the waiver thereof as in this chapter prescribed.”

The necessary requirement under the statute quoted is that the notice and undertaking be served and filed within the time allowed for appeal. The statute provides that “The appeal shall be deemed taken by the service of a notice of .the appeal and perfected on service of the undertaking for costs, or the deposit of money instead, or the waiver thereof as in this chapter prescribed.” The notice of appeal and the undertaking on appeal were duly served upon all of the defendants and filed with the clerk of the district court. Since service of the notice of appeal was-timely made upon all of the defendants and filed in the office of the clerk of the district court, the fact that proof of such service was not filed until two days after the expiration of the time for appeal was immaterial.

The second ground upon which defendants base their motion to dismiss goes to the sufficiency of the undertaking on appeal. The undertaking is as follows:

“Whereas, On the 24fh day of. April, 1952, in the District Court within and for the County of Williams, State of North Dakota, the Hon. Roy A. Ilved-son, Judge of the District Court, ordered Judgment in favor of the. defendants and against the plaintiffs adjudging, determining and decreeing that the adverse claims of the plaintiffs and each of them are invalid, inferior and junior to the rights, title and interests of the defendants, Olaf Giske, ■A. M. Fruh, Thomas W. Leach and Carl Thompson, and thereby adjudging said claims of plaintiffs as null and void and further decreeing that they have no estate or interest in .or lien or en-: cumbrance upon the real property involved in said action; and the above named plaintiffs and appellants feeling aggrieved thereby, intend ■ to - appeal therefrom to the Supreme Court of the State of" North Dakota; Now Therefore, We do hereby undertake that the said plaintiffs and appellants will pay all costs and damages which may be awarded against them on said' appeal or on a dismissal thereof, not exceeding Two Hundred Fifty ($250.00) Dollars.
“Dated this 2 day of October A. D. 1952.
“Henry Strom
Henry Strobeck
Archie Borg.”

The undertaking was signed by only one of the six plaintiff-appellants Henry Strom. Respondents contend therefore that since the five plaintiffs did not join in the execution of the undertaking they, in effect, failed to furnish an undertaking as required by statute. However the undertaking was executed and -acknowledged by two sureties. By its terms the sureties undertook that the plaintiffs would pay all costs and damages which might be awarded against them on appeal or on a dismissal thereof. Under the terms of the undertaking the sureties are obligated to pay any amount of costs and damage awarded the defendants against the plaintiffs on the appeal in the amount fixed by the undertaking.

As required by Section 28-2723 NDRC 1943 the sureties justified as to their financial worth over and above their debts and liabilities in property within the state not exempt by law from execution in double the amount specified in the undertaking. It does not appear that the defendants took any exception to the sufficiency of the sureties.

Section 28-2709 NDRC 1943, reads as follows:

“To render an appeal effectual for any purpose, an undertaking must be executed on the part of the appellant by at least two sureties to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal not exceeding two hundred fifty dollars.”

The undertaking in the instant case complies with the requirements of said Section 28-2709 and is therefore sufficient in all respects.

The undisputed facts are substantially as follows:

Prior to the first day of October 1941 one Mary Strom was the record title owner of the real property described in the complaint. The post office address as shown in the office of the register of deeds of Williams County, North Dakota was Tioga, North Dakota. She resided at White Earth, North Dakota with her husband from the year 1923 until about the month of February 1935 when she died. The plaintiffs in this action are the heirs at law of said Mary Strom, but no administrator was ever appointed nor were any proceedings for the administration of her estate had in any county in the state of North Dakota.

Four of the plaintiffs, Effie Shearon, Ruth Stuart, Mabel Kong and Erwin Strom were non-residents. Henry Strom was a resident of the state and had resided at Fargo and Ross, North Dakota twenty two years. Robert also was a resident of the state and resided at Minot, North Dakota.

Taxes were legally assessed and levied by Williams County against the said described real property for the year 1934 but the taxes remained unpaid and were sold to Williams County at the annual tax sale on December 10, 1935. No redemption was made from said tax sale. On the 23rd day of May 1941 the county auditor of Williams County caused to be mailed to Mary Strom at White Earth, North Dakota a registered letter containing a notice of expiration of period of redemption in which the land was described as being in range 95 instead of range 96. On June 2, 1941 the envelope containing the notice was returned unopened with a notation thereon “deceased”.

Thereafter the county auditor caused notice of expiration of period of redemption of the lands sold to the county at tax sale to be published in the official county newspaper, The Williston Daily Herald on August 1, 1941 in the form and in the manner prescribed by law. No redemption was made pursuant to such notice. On October 1st, 1941 the county auditor issued to Williams County a deed to the said described land in the statutory form known as “Auditor’s Deed”. Thereafter and in the year 1943 Williams County sold the said described land to the defendant Olaf Giske under contract for deed for a consideration of $200 and accumulated interest and on October 1, 1945 he received a deed from Williams County. Thereafter the defendant Olaf Giske conveyed to the defendants A. M. Fruh and Thomas W. Leach certain undivided interests in and to all of the oil, gas and other minerals in and under, and that may be produced on said lands. The defendants A. M. Fruh and Thomas W. Leach conveyed certain interests in said premises to the defendant Carl Thompson.

The trial court held that it would have been an idle act to attempt to serve the notice of expiration of the period of redemption upon the record title owner, since she was dead, and that the statutory requirements for service of such notice were complied with by the publication thereof in the form and manner provided by law. Accordingly the court held that the defendant Olaf Giske was the owner in fee simple of the real property described in the complaint, and that the defendants A. M. Fruh, Thomas W. Leach and Carl Thompson were the owners of certain undivided mineral interests in said real property; that the said defendants, severally, were the owners and entitled to the possession of said real property in accordance with their said interests free and clear of any claim or interest in or lien or incumbrance upon said real property by the plaintiffs or any or either of them. Judgment was accordingly rendered for the defendants and for the dismissal of plaintiffs’ action.

The plaintiffs appealed from the judgment. They contend that the auditor’s deed to Williams County and the deed by Williams County to Olaf Giske were void upon the following grounds:

1. That the notice of the period of redemption mailed to Mary Strom was fatally defective in that the description of the land was incorrect. The range was shown as 95 instead of 96.
2. That the notice of period of redemption was not mailed to the owner Mary Strom at Tioga, North Dakota which was her post office address shown by the records in the office of the register of deeds and the clerk of the district court of Williams County, North Dakota.

We shall first consider ground, 1.

The rule is well settled in this state that a tax deed taken without strict compliance with the statutory requirements as to service of the notice of expiration of period of redemption is void. Section 57-2804, NDRC 1943 prescribes the duties of the county auditor relative to the method of serving the notice of expiration of the 'period of redemption upon the record title owner, mortgagees, lien holders and other persons interested as shown by the records in the office of the register of deeds and the clerk of court of the county in which the land is situated and is as follows:

“The county auditor shall serve the notice of the expiration of the period of redemption upon the owner of the record title of the real estate sold to the county for taxes, and upon each mortgagee, lien holder, and other person interested therein as may appear from the records of the register of deeds and the clerk of the district court of said county. Said notice shall be served by registered mail, and a registry and return receipt shall he demanded and filed with proof of service.”

That the notice of redemption must contain a correct description of the land involved complete in itself has been held in numerous cases decided by this court including Blessett v. Turcotte, 20 N.D. 151, 127 N.W. 505; State Finance Co. v. Trimble, 16 N.D. 199, 112 N.W. 984; Star v. Norsteby, 75 N.D. 563, 30 N.W.2d 718.

In Blessett v. Turcotte the notice of expiration of the period of redemption was held void because it described the land as the NWJ4 of Sec. 2, instead of NW% of Sec. 20.

In the case of State Finance Co. v. Trimble, the description in the notice was as follows: N½ and SEJ4 of Sec. 12, Twp. 140, Rge. 63. The-correct description was Ni/aNEi^, SEi/4NEi/4, NEi/4SEi/4 of Sec. 12, Twp. 140, Rge. 63. The notice was held to be void.

Respondents contend that since the notice of expiration of the period of redemption was published as required, by law no one was prejudiced by the failure of the county auditor to mail the redemption notice to the record title owner. They contend further that mailing the notice to the record title owner in the instant case would be an idle act since she was dead. They cite the case of Baird v. Zahl, 58 N.D. 388, 226 N.W. 549, 551. However that case does not support their contention. We held there:

“Before a valid tax deed can' issue, notice of expiration of the time for redemption must be given of the kind and in the manner prescribed by law. * * * This court has held that before a valid tax deed can issue there must, be full compliance with all provisions of law intended for the protection of the taxpayer, and those having the right to redeem; but that errors or inaccuracies which do not affect the substance, which are trifling in their nature, and could not possibly have misled or prejudiced anyone, do not affect the validity of the notice of expiration of time for redemption.”

And in the case of Cota v. McDermott, 73 N.D. 459, 16 N.W.2d 54, 58, 155 A.L.R. 1271, we said:

“As we construe this section- (57-2804) the notice must be thus mailed to the addresses of those entitled thereto as furnished by the register of deeds and the clerk of the district court on the auditor’s request. Here, the auditor, insofar as he was able to do so, followed the letter of the statute in his effort to make service of the notice. He mailed it to the defendant at her record post office address, which was also the post office nearest the land and served the residents of that vicinity. It is true that he did not file with his affidavit of proof the return receipt signed by the record owner. That was not possible. It was not sent back with the uncalled for letter containing the notice. But he did file the returned envelope with the postmaster’s stamped notation thereon as to why it was returned. Of course, the letter not being called for and delivered, the receipt could not be signed and so it would not, in any event, have added anything to the proof made. The purpose in having the return receipt filed was to show the person, if any, to whom it was delivered. Clearly, the legislature could not have intended that if the addressee did not receive the letter through no fault of the auditor the county could not take deed. On the contrary, it must have intended that an attempt should be made by the auditor, in the manner provided by the statute, to' get service upon the tax debtor and that if he did everything required by the statute that he could do, there would be a sufficient service.”

To the same effect is Messer v. Henlein, 72 N.D. 63, 4 N.W.2d 587, 589, where we said:

“This court has held on many occasions that a tax deed issued without strict compliance with the statutory requirements as to the service of notice of expiration of redemption is void. Blakemore v. Cooper, 15 N.D. 5, 106 N.W. 566, 4 L.R.A.,N.S., 1074, 125 Am.St.Rep. 574; Davidson v. Kepner, 37 N.D. 198, 163 N.W. 831; Baird v. Zahl, 58 N.D. 388, 226 N.W. 549; Biberdorf v. Juhnke, 59 N.D. 1, 228 N.W. 233. In Cruser v. Williams, 13 N.D. 284, 100 N.W. 721, this court said: ‘The redemption period does not terminate, or the certificate of sale mature, or title pass, until the statutory notice of the expiration of redemption has been given.’ It is thus clear that the issuance of a tax deed to Stark County of the property here in suit did not operate to cut off defendant’s right of redemption nor vest title in the county. It also follows that plaintiff acquired no title to the property for his grantor could not convey that which it did not possess.”

Under Section 57-2804 it was the duty of the county auditor to send to the record title owner by registered mail a notice of expiration of the period of redemption containing a correct description of the land involved. It is admitted that the notice of expiration of the period of redemption sent by the county auditor to Mary Strom at White Earth described the land as being in Range 95, whereas it was actually situated in Range 96. The notice mailed to Mary Strom was therefore fatally ■defective and the attempted Service upon Tier was as ineffectual as if no attempt to ■make service upon her had ever been made. The auditor’s deed to Williams County and the tax deed issued by the county to defendant Olaf Giske were therefore void and of no effect.

However, the defendant Giske contends that because of laches on the part of the plaintiffs in bringing the action the same is barred. He purchased the land in 1943 and they brought their action in 1951. The trial court having held that the tax deed proceedings were regular and valid, did not pass on the question of laches.

’It is argued that since the discovery of oil the land in question has increased in value from $1.25 per acre to several hundred dollars per acre and that this increase in value has accrued to the benefit of the respondent Giske; that it would be unjust and inequitable to sustain plaintiffs’ cause of action at this time.

It is well established that laches is a question of fact and each case must stand or fall on its own facts and circumstances. In the case of Grandin v. Gardiner, N.D., 63 N.W.2d 128, 134, this court quoted with approval from Jones v. McNabb, 184 Okl. 9, 84 P.2d 429, as follows:

“ ‘The question of whether a claim is barred by laches must be determined by the facts and circumstances in each •case and according to right and justice. Laches, in legal significance, is delay that works a disadvantage to another and causes change of condition or relation during the period of delay. The ■failure of the owner of real estate to pay taxes thereon from 1911 to 1936, .and the payment of such taxes by the •purchaser at a tax sale, and the increase -in value of the property by the discovery of oil nearby, held not sufficient to sustain a defense of laches in favor of the holder of a void tax •deed.’ ”

And in Larson v. Quanrud, Brink & Reibold, 78 N.D. 70, 47 N.W.2d 743, 745, 29 A.L.R.2d 230, Syllabus 9, we said:

“Laches doeS not arise from mere delay or lapse of time. -The' party against whom laches is sought tó be invoked must be actually or presumptively aware of his rights and fail to assert them against a party who has in good faith permitted his position to become so changed that he cannot be restored to his former state.”

In the case of Turner v. Hunt, 131 Tex. 492, 116 S.W.2d 688, 691, 117 A.L.R. 1066, the Supreme Court of Texas said:

“The question is not strictly one of delay in instituting suit after the accrual of the cause of action, which is usually determinable by the period of limitation fixed by statute. Here the delay is in asserting the right by making selection of the particular acre. Turner waited nearly nine years and a half to select the one acre and gave no explanation of the delay. In Dull v. Blum, 68 Tex. 299, 301, 4 S.W. 489, it was held that a similar right was lost by an unexplained delay of twenty years in making choice of the land. It is our opinion that Turner’s delay, a little less than ten years, though long and unexplained, cannot be held sufficient to defeat his right because the facts as to the effects of the delay have not been developed. Except in case of extreme delay like that in Dull v. Blum, supra, delay, which works no injury or no disadvantage to another, is not such laches as will bar a right.” (Numerous citations.)

In the case of McIver v. Norman, 187 Or. 516, 205 P.2d 137, 213 P.2d 144, 153, 13 A.L.R.2d 749, the Supreme Court of Oregon held:

“Another well-recognized rule is that in cases of this kind courts of equity act by analogy to the statutory limitations of. actions at law, and hold that when suit is brought within the time fixed by the analogous statute the burden is on the defendant to show the existence of the circumstances amounting to laches, whereas, if the suit is brought after the statutory time, plaintiff must plead and prove that laches does not exist.”

And in the case of Neff v. Calk, 198 Okl. 379, 178 P.2d 624, 626, the Supreme Court of the State said:

“Ordinarily, the courts apply by analogy the period of limitations fixed by statute to the plea of laches. Wilson v. Bombeck, 38 Okl. 498, 134 P. 382; 19 Am.Jur. 345; 30 C.J.S., Equity, § 131, page 557. And where, as here, the limitation period has not run, the burden is upon the plaintiff to plead and prove facts showing prejudice by the delay. Parks v. Classen Co., 156 Okl. 43, 9 P.2d 432; 19 Am.Jur. 346; 30 C.J.S., Equity, § 132, page 563.”

Likewise in the case of Gaffney v. Harmon, 405 Ill. 273, 90 N.E.2d 785, 789, the Supreme Court of Illinois held that the doctrine of laches will be applied by a court of equity in denial of relief when the period of limitations has not expired, only where from all of the circumstances in evidence, to grant relief to which the complainant would otherwise be entitled, would, presumptively be inequitable and unjust to defendants. Referring to the doctrine of laches the court said:

“In the recent case of Rogers v. Barton, 386 Ill. 244, 53 N.E.2d 862, 866, we reaffirmed that principle, saying : ‘In an equitable proceeding it is only when by delay or neglect to assert a right the adverse party is lulled into doing that which he would not have done or into omitting to do that which he would have done in reference to the property had the right been properly asserted that the defense of laches will be considered.’ ”

The defendant Olaf Giske testified that none of the plaintiffs had ever at any time made any claim to said described land and that the first time that they showed any interest in said land was on the 3rd day of July 1951 a few months after the discovery of oil in the vicinity of the land, when they drove to his farm and stated that they had examined the record and asked him to give them a quitclaim deed to the land.

He testified further that in June 1940 he took one of the plaintiffs, Erwin Strom out to see the land and that Erwin Strom said:

“I could use the land, he would have no objection to me having the land.”

The plaintiff Henry Strom testified that the first time he knew the land had been sold for taxes was “in April 1951, when the Amerada man came down there and wanted a quitclaim deed.”

It may be noted here that Amerada Petroleum Corporation was originally joined as a defendant, but later withdrew from the action by stipulation of all of the parties.

In November 1948 Effie Shearon one of the plaintiffs who resided in Seattle, Washington wrote a letter to the county treasurer of Williams County which was admitted in evidence by stipulation, in which she stated that her mother Mary Strom or her father Edward Strom had some land south of Tioga, but she did not know the legal description. She asked the treasurer to check the records in his office and advise her as she wished to pay whatever taxes there might be due on the land. The treasurer returned the letter to her with a notation on the back thereof stating he was unable to find any land in the name of Mary Strom or Edward Strom, but suggested that she write to one of the neighbors who might be able to give her the desired information.

The only testimony as to the value of the land in controversy is that of the defendant Olaf Giske. He stated that prior to the discovery of oil the land was worth about $6.50 per acre, and that after the discovery of oil it was worth $250 per acre. There is no other testimony in the record as to the value of the land. So far as the record and evidence show no oil has been discovered nor has any drilling for oil been done on the land. The improvements he had made were not extensive. He had plowed twelve acres at a cost of $7 per acre, and had spent some $500 for a fence he had erected on the land.

The change in the status of the parties as claimed by the defendant Olaf Giske, is that the discovery of oil in the vicinity of the land in question greatly enhanced its value, and that it would be inequitable and unjust to permit the plaintiffs to prevail in this action. However, the discovery of oil was not the result of any effort or activity on the part of the defendant Giske. Whatever sums he may have expended in improving the land during his occupancy thereof may be easily ascertained so that he can be compensated therefor and thus be restored to his former status.

Section 47-0603, NDRC 1943, as amended by Chapter 276, Session Laws 1951 provides :

“A title to real property, vested in any person or those under whom he claims, who shall have been in the actual open adverse and undisputed possession of the land under such title for a period of ten years and who shall have paid all taxes and assessments legally levied thereon, shall be valid in law. * * *”

As we have pointed out herein, the courts ordinarily apply by analogy the period of limitations fixed by statute to the plea of laches. In the instant case the defendant Olaf Giske purchased the land in controversy from Williams County in 1943. In 1951 eight years later, the plaintiffs brought action. At that time the defendant Giske had not been in the actual open and undisputed possession of the land and -had not paid the taxes and assessments legally levied thereon for a period of ten years. Plaintiffs’ action was therefore not barred by the statute. We hold therefore upon the record and the evidence that the defendants have failed to sustain the defense of laches as against the void tax deed held by the defendant Olaf Giske. Since this determines the issues presented on the appeal it will not be necessary to consider the second specification urged by the plaintiffs-appellants.

Williams County was made a party defendant in this action but it did not answer and no appearance was made on its behalf. Section 57-4510, 1953 Supp. NDRC 1943, provides:

“Whenever any action at law or in equity is brought to test the validity of any deed issued and delivered by the county to the purchaser of lands acquired through tax deed proceedings, the court shall not proceed with the trial of such action until the party assailing the validity of such deed, within the time required by the court, shall deposit with the clerk thereof for the benefit of the county should the deed be held invalid, the amount of all delinquent and unpaid taxes on said property, including penalty and interest, plus any taxes paid thereon by the purchaser from the county. Should said action be determined adversely to the purchaser from the county it shall repay to him any moneys received by the county on said purchase.”

No deposit was made by the plaintiffs and no determination was made by the trial court of the amount of the deposit to be made by the plaintiffs as required by said Section 57-4510. A similar question was before this court in the case of Belakjon v. Hilstad, 78 N.D. 194, 48 N.W.2d 747. In that case we held that although the county made no formal demand for judgment in the amount of taxes, penalties and interest during the years that taxes had not been paid by the record title owner, the county was entitled to judgment therefor, and accordingly the case was remanded to the district court for a determination of the deposit required by the statute.

The decision in Belakjon v. Hilstad, supra, is controlling in the instant case relative to the requirement of a deposit under said Section 57-4510. The judgment is reversed and remanded with directions to the district court to determine the amount of deposit to be made by appellants as required by the statute and that further proceedings be had conformable to law.

MORRIS, C. J., and BURKE and CRIMSON, JJ., concur.

JOHNSON, J., did not participate.

On Petition for Rehearing.

SATHRE, Judge.

A petition for rehearing has been filed by the respondent in which it is strenuously argued that the principle of law embodied in Section 57-2705, NDRC 1943, as amended by Chapter 276 of the Session Laws of 1951 was overlooked in the opinion prepared herein. The county auditor’s deed to Williams County of the real property involved in this action was issued October 1, 1941. At that time Section 2206, Compiled Laws of North Dakota of 1913 was in force and effect. That Statute is identical with Section 57-2705, NDRC 1943 as amended by Chapter 276 of the Session Laws of 1951. The last clause of said Section reads as follows:

“Such deed shall be conclusive evidence of the truth of all facts therein recited and prima facie evidence of the regularity of all the proceedings from the assessment and valuation of the 'land by the assessor up to the execution of the deed.”

It is contended that that portion quoted is a rule of evidence which has been prescribed by the legislature and is binding upon the court where timely objection has been made to the reception of evidence which tends to refute the factual recital contained in the tax deed. The tax deed contains the fpllowing recitations:

“And it appearing that such real property has not been redeemed from such sale.; that notice of the expiration of the right to redeem from such sale has been given, as required by law; that ninety days have expired since the completed service of such notice; that proof of legal notice of expiration of the period of redemption has been filed in the office of the County Auditor as required by law”.

This court has held that under the provisions of Section 2206, Comp.Laws of 1913, a tax deed executed by the county auditor is “ ‘prima facie evidence of the regularity of all the proceedings from the assessment and valuation of the land by the assessor up to the execution of the deed.’ ” Twedt v. Hanson, 58 N.D. 571, 226 N.W. 615, 618; Peterson v. Reishus, 66 N.D. 436, 266 N.W. 417, 105 A.L.R. 724; Axt v. Bank of America, 72 N.D. 600, 10 N.W.2d 430.

It follows therefore that such prima facie proof may be overcome by clear evidence that the notice of expiration of period of redemption had not been served in the manner and form required by statute. It has been pointed out in the opinion herein that in the tax deed proceedings had by Williams County there was an absolute failure of compliance with the statutory requirements for service of the notice of expiration of the period of redemption. The recitation in the tax deed that the notice of the expiration of right to redeem from such sale had been given as required by law was prima facie evidence only and became ineffective when the tax deed proceedings showed affirmatively that there had been an absolute failure of service of the notice of expiration of period of redemption in the manner required by law.

Section 2206 of the Compiled Laws of 1913, which is identical with Section 57-2705, NDRC 1943 as amended by Chapter 276 of the Session Laws of 1951 was in force and effect until adoption of the Revised Code of North Dakota in 1943. During the effective date thereof the question as to the necessity for service of the notice of expiration of period of redemption has been considered by this court on many occasions and we have invariably held that the statutory requirements for service of such notice must be strictly complied with. Biberdorf v. Juhnke, 59 N.D. 1, 228 N.W. 233; Messer v. Henlein, 72 N.D. 63, 4 N.W.2d 587; Davidson v. Kepner, 37 N.D. 198, 163 N.W. 831.

Rehearing denied.

BURKE, C. J., and MORRIS and GRIM-SON, JJ., concur.

JOHNSON, J., did not participate.


author: MORRIS, Judge.

text:
    Effie ANDERSON, Plaintiff and Respondent, v. Arnold ANDERSON, Defendant and Appellant.
    No. 7454.
    Supreme Court of North Dakota.
    March 3, 1955.

      Robert Wallin, Hettinger, for plaintiff and respondent.
    Mackoff, Kellogg, Muggli & Kirby, Dickinson, for defendant and appellant.
   MORRIS, Judge.

This is an action for divorce instituted on October 5, 1953, by the plaintiff against the defendant upon the grounds of wilful neglect and extreme cruelty. The plaintiff also sought custody of a three year old daughter born to the marriage.

The defendant answered denying the allegations of the complaint and counterclaimed for a divorce in his behalf upon the ground that the plaintiff had committed adultery with two men named in the complaint and asked that custody of the daughter be awarded to him.

The trial court made findings of fact setting forth in some detail plaintiff’s conduct with respect to one of these men from which he drew the conclusion of law that the plaintiff had been guilty of the commission of adultery. He awarded custody of the child to the defendant and decreed that the defendant be divorced from the plaintiff. The plaintiff does not question these findings. The trial court also decreed that the defendant pay the plaintiff the sum of $2,000 “as and for her services and property settlement in full.”

The defendant appealed from the judgment entered pursuant to the court’s conclusions of law and demanded a trial de novo. He challenges the award of $2,000 to the plaintiff. This award constitutes the only question in issue on this appeal.

The findings of fact are entirely devoid of any reference to the award or facts upon which it was based but since a trial de novo has been demanded we will consider the facts disclosed by the record to the extent necessary to determine whether the award was warranted.

The parties were married June 20, 1949. The defendant was then a bachelor owning and operating a farm of 240 acres, all but 35 acres being under cultivation. The plaintiff had previously been married and divorced. She brought to the home three children by her former marriage, a teen aged daughter and two boys aged about eight and six years respectively. The children were not adopted by the defendant but joined the family circle. The daughter went to Billings, Montana, in the spring of 1951. The boys remained on the farm until some weeks after the plaintiff left and went to Billings on February 14, 1953. Testimony concerning the circumstances surrounding her departure is conflicting. The plaintiff claims the defendant forced her to leave. The defendant testified that she left voluntarily to go to the home of her daughter who was then married and was about to be confined. The defendant’s version appears to be the more reasonable one and the trial court so expressed himself in his memorandum opinion. Plaintiff took Jane, the baby daughter of the parties, with her. On February 17, 1953, she wrote the defendant as follows:

“I am writing to let you know that Jane is just fine and every thing is O.K. here and how is the Boy’s come along by now hope they are O.K.”

The relationship between the parties had been far from cordial for over a year due to the plaintiff’s indiscreet actions with respect to other men.

On February 19 the plaintiff wrote a friend stating that she had a job in Billings and liked it fine. She said she came on the train and would have stopped but didn’t have time and “I had to come at once and I couldn’t even tell O.B. so I don’t now how he will feel about it.” She also said:

“I am going to stay and after while I am comeing after the car and the too Boys. I share miss them and I like it hear just fine and I will like it better when O.B. get here for I share miss him like every thing.”

O.B. was a middle aged neighbor and a source of part of the difficulty between the plaintiff and her husband. O.B. was later supplanted in the plaintiff’s affections by one C.M.L. who is the man with whom the trial court found the plaintiff committed adultery. Plaintiff’s language as well as her conduct was indecent. She frequently used a crude but not uncommon expression attributing canine ancestry to the objects of her wrath. The record discloses that in October 1953 the plaintiff and her two boys were occupying a small apartment in Billings with a man who had two small daughters. This is the man referred to in the record as C.M.L. At the time of the trial in December 1953 the plaintiff testified she was supporting herself and two boys by working as a dishwasher in a Billings cafe.

The evidence clearly shows that the plaintiff voluntarily left the home of the parties and thereafter chose to live with a paramour rather than return to her lawful husband. It is the rule that under such circumstances a wife is not entitled to permanent alimony. 17 Am.Jur., Divorce and Separation, Section 616; 27 C.J.S., Divorce, § 229, page 942; Marriage, Divorce, Separation and Domestic Relations, Schouler, 6th Edition, Section 1803. The plaintiff contends that this rule has no application to the award made by the trial court in this case. It is pointed out that Section 14-0524, NDRC 1943, provides that:

“When, a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper, * *

It is argued that the court made the award of $2,000 to the plaintiff “as and for her services and property settlement in full” and that it was just and proper that he do so under the provisions of Section 14-0524, supra.

In Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107, 108, Syllabus Paragraph 4, we said:

“In acting pursuant to the provisions of Section 14-0524, NDRC 1943, providing that When a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper,’ the court may consider the respective ages of the parties; their earning ability; the conduct of the parties during the marriage and its duration; .their station in life; their health and physical condition; the necessities of the parties and their circumstances, financial and otherwise; the value and income-producing capacity of' the property, and whether it was accumulated before or after marriage, and the efforts and attitude of the parties toward its accumulation.”

The question here is not whether the court had power under the statute to make the award but whether under the facts and circumstances he abused his discretion in doing so.

In Heath v. Heath, 103 Fla. 1071, 138 So. 796, 797, 82 A.L.R. 537, the court upheld an award to an adulterous wife where it appeared that the wife’s services and her invested capital contributed to the value of the husband’s business properties. But in doing so, the court said:

“Such an allowance is not alimony and should never be made in any case unless shown to be warranted by special facts and circumstances which support a finding of an equity in the husband’s property arising in favor of the wife from contributions of funds and services made by her toward its accumulation over, above, and beyond the performance of ordinary marital duties toward the husband.”

Some evidence was introduced regarding the amount.of work the plaintiff’s two boys did about the farm. The presence of those children adds nothing to the plaintiff’s claim for a share of the defendant’s property.

“A husband is not hound to maintain his wife’s children by a former husband, but if he receives them into his family and supports them, it is presumed that he does so as a parent and when such is the case, they are not liable to him for their support, nor he to them for their services.” Section 14-0909, NDRC 1943.'

See also Nelson on Divorce and Annulment, 2nd Edition, Section 14.80; 27 C.J.S., Divorce, § 321 b., page 1222; Marriage, Divorce, Separation and Domestic Relations, Schouler, 6th Edition, Section 686.

The record contains no evidence of the value of ■ defendant’s property or the amount of his annual income. It shows that at the time of the marriage the defendant owned a farm of 240 acres on which there was a house he had started to build in 1948. The size of the house is not given. At the time of trial he still owned the same amount of real estate. He had nine head of cattle acquired or raised after the marriage. He owned some farm machinery with his brother. The size of the unit would indicate a farm income somewhat less than the average.

The plaintiff testified that the defendant forced her to dig two ditches 6 feet deep and 20 feet long, one extending from the house to the well, and the other to a cesspool. The defendant says he did not force her to do anything like that but that she did come out and help. This is the only testimony regarding services performed by the plaintiff not arising from the normal duties of a farm wife.

The plaintiff brought to the home her daughter and two sons by a former marriage, where they became a part of the family. The daughter left and married some two years later. The boys stayed with the defendant until several weeks after the plaintiff left. There is no contention that she brought anything with her except her, family. She still has the family but her responsibility has been lightened in the intervening time by the marriage of her daughter and the growth of her sons. On the other hand, the responsibility of the defendant has been materially increased. He now has a small daughter to care for and educate. His mother is assisting him in meeting that responsibility by assuming the duties of housekeeping and caring for the child in- his home. It would seem unjust and improper that his responsibility should be further increased by requiring him to pay any sum to the plaintiff as or in lieu of a division of property. The judgment appealed from is modified by striking therefrom paragraph IV thereof directing payment by the defendant to the plaintiff of the sum of $2,000 and as so modified the judgment is affirmed.

BURKE, C. J., and SATHRE, JOHNSON, and GRIMSON, jj., concur.