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-and the same record includes the assessment for the years 1908 to 1911 inclusive. The assessment of the tract leased by Swift & Company is similar for the years 1908 to 1913, inclusive, but describes it as 3,800 square feet, original town, opposite block 27. This is a fair sample of the assessment for the year 1913, and in the assessment for that year is included the assessment for the preceding years, as indicated.

We hold the assessment to be void, because of the insufficiency of the description. There is nothing in the description of "the northeast 100 feet of lot 7, block 28" or "3,800 square feet opposite block 27" to mark out the real property intended to be assessed. The northeast 100 feet may be a square 10 feet by 10 feet in the northeast corner, or it may be a portion of the northeast corner of the lots 100 feet in width or in depth. The same way with the expression 3,800 square feet. That might be a portion 60 feet by approximately 64 feet, or it might be 40 by 95 feet or in any other form. This court has already held in the case of Grand Forks County v. Frederick, 16 N. D. 118, 125 Am. St. Rep. 621, 112 N. W. 839, that a description of real property in lot 2 as "N. 23 x 200 ft. deep" was "void for indefiniteness, although the owner of the lot is correctly named in the assessment roll." In that case the court said: "No point is given as the starting point for the dimensions 23 by 200 feet." This court has held from time to time that land is not assessed unless described with sufficient accuracy for identification. It is not enough that the owner's name be given correctly, or even that he may not be misled by the description. He may know that his land is intended to be assessed; yet, this does not relieve the authorities from proceeding regularly in assessment matters. See Wells County v. McHenry, 7 N. D. 246, 74 N. W. 241; Sheets v. Paine, 10 N. D. 103, 86 N. W. 117, and numerous other decisions of this court.

The defendants claim that even though there may be an irregularity or defect or illegality in assessing, laying, or levying such tax, the courts have the power, under § 2201 of Comp. Laws 1913, to amend and correct the irregularities or defects. As shown in the case of Grand Forks County v. Frederick, supra, this section does not apply to void assessments, by reason of failure to describe the land definitely. We have had occasion already to show that this section does not apply to assessment void on other grounds (Northwestern Improv. Co. v.

Oliver County, post, 57, 164 N. W. 315); and the case cited above settles the question of its application to assessments void for indefiniteness of description.

Defendants claim that the plaintiffs cannot be heard in this case, because these lease interests are assessable, have not paid taxes, and that no taxes are tendered. As we have held in the case of Northwestern Improv. Co. v. Oliver County, supra, no tender need be made in such case as this. This is a statutory action to determine adverse claims. There are no taxes to tender, for the assessment is void, and the nature of this action does not require a tender to be made. If the taxpayer were asking for equitable relief because of some irregularity in the tax proceedings, it would present a different situation. The judgment of the lower court is affirmed.

BIRDZELL, J., being disqualified, did not participate. Honorable A. G. BURR, Judge of the Ninth Judicial District, sat in his place.

CHRISTIANSON, J. (concurring specially). I concur in the opinion prepared by Judge Burr, solely for the reason that the questions involved are controlled by the former decisions of this court. It seems to me, however, the rule announced ought to be changed by legislative


ROBINSON, J. (concurring). This is an action to determine adverse claims to real property. The complaint avers and shows that the plaintiffs have some title or interest in certain property in the city of Grand Forks, to wit, a part of lot 7 in block 28, and a part of lots 9 and 11 in block 28, which parts are described by metes and bounds. It avers that the defendant claims some estate or interest in said property adverse to the plaintiffs.

The answer is in effect that, for several specified years, the property was duly listed and assessed for taxation, and taxes were duly levied against it, and for such taxes the property was duly sold to Grand Forks county.

The county appeals from a judgment holding void the assessment, the taxes, and the tax sale on the ground that the land description is fatally defective. In the assessment book for each year the description of

one tract is: Northeast 100 feet of lot 7 in block 28, Name of Owner -Nash Brothers, or lot 7 in block 28, name of owner-Gt. Nor. R. R. Co. The description of the other tract is: 3,800 square feet original town opposite block 27, city of Grand Forks, name of owner, Swift Company, or Gt. Nor. R. R. Co., lot 9, block 28.

There is a first and second description of each tract, and each description is in a different assessment book. All of lots 7, 9, and 11 are a part of the Great Northern right of way. Only a part of each lot is leased, and the part not leased is not subject to taxation. As the leased property consists of only a fractional part of each lot, it was not possible to describe it by giving the number of the lot, and the other descriptions are too vague. They describe nothing.

It is established by the decisions of this court from its organization that, before there can be any valid tax against land, there must be a description sufficiently accurate and definite to enable the owner and others to identify it. The description as given in the assessment roll is to be used in all subsequent proceedings. There is no provision for changing the description in order to correct it or make it more certain, and extrinsic evidence is not admissible to show what is meant by the description. A sufficient description is necessary, not alone for the benefit of the owner. It becomes the basis of all further proceedings and future titles. Grand Forks County v. Frederick, 16 N. D. 123, 125 Am. St. Rep. 621, 112 N. W. 839. Land is not assessed unless it is described with sufficient accuracy for complete identification. The reasoning of Judge Cooley and the authorities cited by him are absolutely conclusive, and show that there was no reason for taking this appeal.

In a statutory action like this it is sheer folly for counsel to talk about rules of equity. It is a case of strict law, and not of equity. The statute gives the right of action and the form of the complaint. It avers that defendant claims some title or interest in the land adverse to the plaintiff, and challenges the defendant to set forth and establish his title or to abandon it. The defendant becomes the plaintiff and tenders the issue, and of course the other party must have a right to defend against the claim of title, when the answer and evidence shows that a claim is based on a void assessment, tax sale, or tax deed, then it must be adjudged void as a matter of law, and there is no equity or

discretion about it. It is time to cease talking of equity unless, when the power of the court is invoked to relief against some hardship, penalty, or forfeiture, or to mitigate some severity of the law.

Judgment affirmed.

GRACE, J. I concur in the result.

JAMES BALLWEBER and George A. Edgerton, Copartners, Doing Business under the Firm Name and Style of Ballweber & Edgerton v. GEORGE A. KERN and W. A. Hart.


- trial of — uncertainty of issues pleadings -case remanded - to lower court — for retrial er to so act merits ends of justice. Where, in the trial of an action by the trial court, the issues formed by the pleadings are uncertain, or, if in the course of the trial the issues become uncertain by introduction of testimony of other causes of action than those alleged in the complaint, and there are no instructions of the court concerning the new issues in the case, and the case by reason thereof becomes so involved that it is practically impossible to discern what really were the issues in the case, and where it is impossible to determine what issues were presented to the jury and what were passed upon by them, upon an appeal from the judgment in such case, this court, in the exercise of its inherent power, may return such case to the trial court for a new trial, with instructions that the issues be more clearly and definitely formed and defined, to the end that the case may be tried upon its merits upon issues definitely formed.

(164 N. W. 272.)

· evidence -new issues supreme court


Opinion filed July 21, 1917. Rehearing denied August 23, 1917.

Appeal from the District Court of Golden Valley County, W. C. Crawford, Judge.


F. C. Heffron and Albert H. Hall, for appellants.

When one desirous of selling or trading lands secures the services of a broker by promise of a commission, and such broker procures a purchaser to whom such sale is made, he must pay such broker his

commission regardless of whether the actual sale was finally consummated by the broker, or whether the principal took the matter out of the hands of the broker and made sale himself. Northern Immigration Asso. v. Alger, 27 N. D. 467, 147 N. W. 100; Gibson v. Hunt,

Iowa,, 94 N. W. 277; Reishus-Remer Land Co. v. Benner, 91 Minn. 401, 98 N. W. 186; Hoadley v. Savings Bank, 44 L.R.A. 321 and notes, 71 Conn. 599, 42 Atl. 667; Hubachek v. Hazzard, 83 Minn. 437, 86 N. W. 426.

The principal cannot so deprive the broker of his commissions. 4 Am. & Eng. Enc. Law, 979, 980.

"After a broker has commenced negotiations for the sale of property, the owner cannot take the matter into his own hands and complete it, either at the price limited or at a less price, and refuse to pay the commissions. Chilton v. Butler, 1 E. D. Smith, 150.

One who destroys evidence in his possession favorable to the other party is presumed to have done so because its introduction into court would be against him. 16 Cyc. 1058.

R. F. Gallagher and Keohane & Jones for respondents.

Fundamentally it is the duty of the court to correct its orders when they have been made under mistake or inadvertence, and this right to do so has always been recognized. United States v. Young, 94 U. S. 259, 24 L. ed. 153.

An order granting a new trial is an appealable order. Braithwaite v. Aiken, 2 N. D. 57, 49 N. W. 419; St. Anthony & D. Elevator Co. v. Martineau, 30 N. D. 425, 153 N. W. 416; Aylmer v. Adams, 30 N. D. 514, 153 N. W. 419.

Where the trial court makes its order improperly denying a motion, such court, on proper application, may review its former order; and if it finds that such original order was entered through mistake or inadvertence, it may correct the same by its further order conforming to the true situation. Clein v. Wandschneider, 14 Wash. 257, 44 Pac. 272; Burnham v. Spokane, Mercantile Co. 18 Wash. 207, 51 Pac. 363; Odd Fellows' Sav. Bank v. Deuprey, 66 Cal. 170, 4 Pac. 1173; Morris v. DeCelis, 41 Cal. 331; Hall v. Polack, 42 Cal. 218; Crosby v. North Bonanza Silver Mill. Co. 23 Nev. 70, 42 Pac. 583.

The general rule here is that where a motion for a new trial has been granted, the court has power to vacate the order granting the motion,

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