| Summary: | SWENSON o. GREENLAND. 535 As we have stated, the fact of the treasurer’s receiving the tax books is made a condition of any tax lien upon personal property. This condition is therefore essential, and cannot be presumed. The point is, in our opinion, fatal to the complaint. But other facts quite as material are omitted. There is an entire absence of any allegations showing or tending to show that any taxes were ever “assessed,” and no sufficient averment that a tax was levied in Griggs County in the year 1892 or 1893. A tax must be such before it becomes a lien. The statute says: "The taxes assessed upon personal property shall be a lien,” etc. Section 90, supra. The complaint fails to state that taxes of 1892-93 were assessed, or attempted to be assessed; nor is there any property allegation of a levy or an attempted levy. It is well settled that, in an action to recover a tax or enforce a tax lien, all the material steps upon which a valid tax depends must be stated in the complaint. This court had occasion to apply this doctrine in O'Neil v. Tyler, 3 N. D. 47, 53 N. W. 434. See opinion, pages 66, 67, 3 N. D., and page 440, 53 N. W., and cases there cited; also, 25 Am. 8: Eng. Enc. Law, p. 320; also, Id. p. 321, and notes I and 2. It is conceded that the defendant, as agent of the mortgagee, is legally entitled to the proceeds of the sale, unless such proceeds may be taken from him to pay an alleged tax, which, if it exists, is a burden upon the property. In such a case all steps essential to the validity of the tax must be alleged. The plaintiff has the onus probandi. None of the essential facts are alleged. It follows that the demurrer to the amended complaint was well taken, and should have been sustained, and that the order overruling the demurrer was error. The order must be reversed, and the trial court will be directed to reverse the same, and enter an order sustaining the demurrer. All concur. (62 N. W. Rep. 603.)
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