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394, 96 N. W. 1029; Douglas v. Hennessy, 15 R. I. 272, 3 Atl. 213, 7 Atl. 1, 10 Atl. 583; Brown v. Crookston Agl. Co., 34 Minn, 545, 26 N. W. 907.

It is also contended that the introduction of the certificates and deeds did not make out a prima facie case. This contention is likewise untenable. It is true that “in the absence of an enabling statute, it is incumbent upon any person who claims title to land derived from a sale thereof for taxes to prove affirmatively and by proper evidence that every mandatory provision of the law under which the sale was effected was strictly complied with; that each step in the proceedings from the assessment of the taxes to the execution of the deed was formally and regularly taken by 11 the officers or persons thereto legally authorized and that he or his grantor was the purchaser at the sale. And this obligation is not met, in the absence of an enabling statute, by the mere production of the tax deed. The deed of conveyance would not stand for this evidence. It would prove its own execution, nothing more": Black on Tax Titles, secs. 443, 444; 2 Cooley on Taxation, 3d ed., 1004. The common-law rule of proof was abrogated by the statute under which the sales in question were made. The several sales were made in 1891, 1893 and 1894, under chapter 132, page 376, Laws of 1890 as amended by chapter 100, page 266, Laws of 1891. Section 71 of the 1890 act prescribed a form of certificate to be delivered to the purchaser and section 72 of that act provided that "such certificate shall in all cases be prima facie evidence that all the requirements of the law in respect to the sale have been duly complied with, and that the grantee named therein is entitled to a deed therefor after the time for redemption has expired." The 1890 revenue law made no provision for the issuance of a tax deed. The amendatory act (chapter 100, page 266, Laws of 1891) cured this defect, and, among other things, provided for the issuance of deeds, “which shall vest in the grantee an absolute estate in fee simple . which shall be conclusive evidence of the truth of all the facts therein recited, and prima facie evidence of the regularity of the proceedings from the valuation of the land by the assessor up to the execution of the deed.” All of the sales were made under the statute as amended.

The deeds, however, were not issued until 1902. The revenue law under which the sales were made was expressly repealed in 1895, and it is contended that the assurances made

Am. St. Rep., Vol. 125—37

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to purchasers by the former statute as to the evidential force of certificates and deeds, is, therefore, not available. This contention was urged in Fisher v. Betts, 12 N. D. 197, 96 N. W. 132, and was overruled. It was contended in that case that because of the repeal of the revenue laws of 1890 and 1891 in 1895, a tax deed issued thereafter had no force as evidence that the tax proceedings were regular, and that the regularity of all acts of all of the taxing officers must be affirmatively established. It was claimed that the repeal in this respect related solely to the remedy, and that the legis. lature has a right to change existing remedies. We denied that the repeal had the effect contended for, in the following language: “The contention would not be disputed if the change referred to 12 the remedy only, but if the change of remedy or change in the rules of evidence goes further in its results, and affects contract rights, such changes are inhibited. The legislature will not be permitted, under the guise of changing a remedy or a rule of evidence, to impair a vested right under an existing contract; and the presumption that all requirements of law with respect to the sale have been complied with, raised by the delivery of the tax certificate, was raised in favor of the tax purchaser by the law in force at the time of his purchase. This presumption was perpetuated by the deed, was a vested matter of right, and could not be taken away by a repeal of these laws: Cooley's Constitutional Limitations, 347. Speaking of section 1639 of the Compiled Laws of 1887, which was practically the same as the section under consideration, this court said, in Roberts v. First Nat. Bank, 8 N. D. 504, 79 N. W. 1019: “This statute entered into the contract of purchase, and became a part thereof.'"

Counsel for defendants vigorously challenges the soundness of the above decision, contending that the statute stated a mere rule of evidence, relating to the remedy, and that remedies are always under legislative control. It has been held in a number of cases that "rules of evidence are at all times subject to modification and control by the legislature, and changes thus made may be made applicable to existing of action,” and that the repeal of a statute under which purchasers at tax sales have been made effectually deprives the purchaser of the assurances contained in it as to the evi. dential effect of the deed. The following cases Hickox v. Tallman, 38 Barb. 608; Howard v. Moot, 64 N. Y. 262; Roby v. City of Chicago, 64 Ill. 447; Gage v. Caraher, 125 Ill. 447, 17 N. E. 777; Gibbs v. Gale, 7 Md. 76; Strode


So hold:

v. Washer, 17 Or. 50, 16 Pac. 926; Marx v. Hanthorn (C. C.), 30 Fed. 579. We have no quarrel with the rule, and it is a general rule that the legislature may control remedies, but the rule is subject to the exception, which is as firmly fixed as the rule itself, that the legislature cannot, by a repeal or change of remedies, impair the obligation of a contract. The protection against the impairment of the obligation is absolute, and all legislative acts which work that result, whether by directly changing its terms or indirectly by rendering it ineffective, and of less value through a change of remedies, are prohibited. This is well stated in 2 Story on the Constitution, fifth edition, section 1385: “It is perfectly clear that any law which enlarges, abridges or in any manner changes the intention of the 13 parties, resulting from the stipulations in the contract, necessarily impair it. The manner or degree in which this change is effected can in no respect influence the conclusion, for whether the law affect the validity, the construction, the duration, the discharge or the evidence of the contract, it impairs its obligation, though it may not do so to the same extent in all supposed cases.

The views of the supreme court of the United States upon this question are clearly set forth in the language of Mr. Justice Swayne, in Edwards v. Kearzey, 96 U. S. 595, 24 L. ed. 793: “The constitution of the United States declares that ‘No state shall pass any .... law impairing the obligation of contracts.' A contract is the agreement of minds, upon a sufficient consideration, that something specified shall be done, or shall not be done. The lexical definition of 'impair' is 'to make worse; to diminish in quantity, value, excellence or strength; to lessen in power; to weaken; to enfeeble; to deteriorate': Webster's Dictionary. "Obligation' is defined to be “the act of obliging or binding; that which obligates; the binding power of a vow, promise, oath, or contract,' etc.: Webster's Dictionary. The obligation of a contract includes everything within its obligatory scope. Among these elements nothing is more important than the means of enforcement. This is the breath of its vital existence. Without it, the contract, as such, in the view of the law, ceases to be, and falls into the class of those 'imperfect obligations,' as they are termed, which depend for their fulfillment upon the will and conscience of those upon whom they rest. The ideas of right and remedy are inseparable. *Want of right and want of remedy are the same thing.' .... It is also the settled doctrine of this court that the

laws which subsist at the time and place of making a contract enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This rule embraces alike those which affect its validity, construction, discharge and enforcement: Von Hoffman v. Quincy, 4 Wall. 535, 18 L. ed. 403; McCracken v. Hayward, 2 How. 608, 11 L. ed. 397. In Green v. Biddle, 8 Wheat. 1, 5 L. ed. 547, this court said, touching the point under consideration: 'It is no answer that the acts of Kentucky now in question are regulations of the remedy, and not of the right to the lands. If these acts so change the nature and extent of existing remedies as materially to impair the rights and interests of the owner, they are just as much a violation of the compact as if they overturned his rights 14 and interests.' 'One of the tests that a contract has been impaired is that its value has by legislation been diminished. It is not by the constitution to be impaired at all. This is not a question of degree, or manner or cause, but of encroaching in any respect on its obligation-dispensing with any part of its force': Planters' Bank of Mississippi v. Sharp, 6 How. 301, 12 L. ed. 447. It is to be understood that the encroachment thus denounced must be material. If it be not material, it will be regarded as of no account. These rules are axioms in the jurisprudence of this court. We think they rest upon a solid foundation. .... The remedy subsisting in a state when and where a contract is made and is to be performed is a part of its obligation, and any subsequent law of the state which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the constitution, and is, therefore, void."

Again, in United States v. Quincy, 71 U. S. 535, 18 L. ed. 403, Mr. Justice Swayne, speaking for the court, said: “It is also settled that the laws which subsist at the time and place of the making of a contract, .... enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This principle embraces alike those which affect its validity, construction, discharge and enforcement. ... It is competent for the states to change the form of remedy, or to modify it otherwise as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances. When

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ever the result mentioned is produced, the act is within the prohibition of the constitution, and to that extent void.”

The question, then, is, not whether the repeal related to the remedy, but whether it impaired the obligation of the purchaser's contract with the state, by making it less effective and less valuable. In Fisher v. Betts, 12 N. D. 197, 96 N. W. 132 we hold that it did, and we are still of the same opinion. The state was one of the contracting parties. It promised to those who would purchase the lands of tax debtors at its sales that it would give to them deeds which would be prima facie evidence of their title. Under this assurance the purchasers parted with their money. If the proceedings were in 15 fact regular, the prima facie effect of the deed was an unassailable assurance of title in the grantee and his successors forever. But if the purchaser be deprived of this assurance, the deed evidences nothing. Neither he nor his successors are in that event protected by the fact that the proceedings were regular. They must be prepared to furnish (sometimes an impossible thing) the actual evidence of regularity whenever their title is challenged. That this change goes to the very life and value of the contract is, we think, apparent; and we cannot believe either that the legislature intended that its promises should be meaningless, or that purchasers did not in fact rely upon it as a strong, if not controlling, inducement to part with their money.

The necessity which gave rise to statutes like this is well stated in Black on Tax Titles at section 448, in the following language: "The application of the common-law rule, casting the burden of proving every step upon the claimant under a tax title, was found to operate very much to the disadvantage of purchasers at tax sales. Aside from the difficulty of the undertaking-to prove every item in a long and technical course of proceedings—it was an arduous task to collect and preserve all the necessary fragments of evidence. Many of these were of a perishable nature, subsisting only in the files of newspapers, or fugitive documents; and the lapse of a considerable number of years, from the time of the first assessment, frequently put it beyond the power of the purchaser to fortify his claim with the evidence that was required of him. This fact, taken in conjunction with the strict and minute compliance with the statutory directions that was demanded of all the officers concerned, and with the extreme probability that some flaw, some slight omission or irregularity, could be detected in the proceedings, tended to make tax sales entirely nugatory. It became pro

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