Baker v. Kelley

• Decision Date: 01 January 1866
• Citation: 11 Minn. 358
• Parties: D. A. J. BAKER AND WIFE vs. JOHN KELLEY.
• Court: Minnesota Supreme Court

11 Minn. 358

D. A. J. BAKER AND WIFEvs.

JOHN KELLEY.

Supreme Court of Minnesota.

Error to district court, Ramsey County.

Points and authorities for plaintiffs in error: —

1. The said tax deed should not have been admitted in evidence, because: First, said deed on its face shows that said premises were sold, not only for unpaid taxes, but for the penalty on such unpaid taxes. The only instance in which parties may be deprived of their property without due process of law, is that of the collection of taxes, which arises from the supreme necessity of the case. But this exception is not extended to the penalty for the nonpayment of taxes; it only applies to the tax itself. Government has summary powers to collect its taxes, but when it undertakes to enforce a penalty for delinquency in the payment of such taxes, it must do so by due process of law. The reason for summary proceedings in the collection of taxes — the supreme necessity of the case — has no application to the collection of the penalty, which is not the delinquent's share of the public burden, but a punishment inflicted on such delinquent for his failure to contribute his share to the public burden at the appointed time. The Government undoubtedly should have power to possess itself of every one's share of the public expenses without delay; but there is no reason why the delinquencies of individuals in contributing their shares to these expenses, should be more summarily dealt with than their delinquencies in other respects. And so the courts hold. Blackwell on Tax Title, pp. 41-42; see also, ch. 1, Blackwell on Tax Title, and authorities cited. Second, the day of sale recited in the deed is not the day therefor appointed by the statute, and it does not appear that there was any postponement of the sale. Third, it appears from the deed that the property therein described was sold as one parcel, which is a violation of sec. 3 of the statute. Fourth, the deed was made before the time of redemption expired, and hence is void. Fifth, it must be shown that all the preliminary steps were taken to authorize the giving of a deed before the deed itself is admissible. The statute does not make the deed prima facie evidence of its recitals. The power of the officer to sell and convey property for nonpayment of taxes is a special statutory power and must be strictly pursued. It must be shown that the officer has pursued his power, that it is a case for the exercise of his power, and that he has acted within and in accordance with his power, before the deed made under the power is admissible in evidence. Blackwell on Tax Titles, 45 et seq., and authorities cited, also 84 et seq., and authorities cited.

2. The plaintiff clearly had, the right to assume the burthen and prove that the preliminary steps to the giving of the deed had not been taken. Clearly nothing passed by the deed, unless all the steps specified by the statute had been taken. Government has the undoubted right to enforce the collection of taxes in a summary manner, and to make due provisions to this end; but these provisions must be pursued. It is the operation of these provisions when complied with, that divests the owner of his property. The naked deed of the officer is effectual for nothing; nor is any act of the officer effectual for any purpose, except when made in pursuance of the law in the premises. It takes all the acts required by the statute to pass the title in such a case. It is in fact the operation of the law which passes the title. Blackwell on Tax Titles, 45, et seq. In all cases the acts prescribed by the statute must be done before the title passes. Doubtless, it is competent for the legislature to make the naked deed of the officer prima facie evidence that all these acts have been done and thus shift the burden of proof on him who avers that they have not been done. But the legislature cannot make the naked deed of the officer conclusive evidence that all the acts prescribed by statute in the premises, have been performed. In other words, the legislature cannot prevent a party in interest from showing that the acts prescribed by statute have not been performed, and hence that nothing has passed; that is, that the naked deed executed by the officer is in fact no deed. In still other terms the legislature cannot provide a certain mode whereby a delinquent tax payer shall be divested of his property, and then by a rule of evidence divest him, without such mode being pursued. Blackwell on Tax Titles, 99 et seq., and authorities cited. Nor can the legislature reach the same end by a statute of limitations. The statute of limitations is a statute of repose. Its object is to protect people in the possession and enjoyment of their rights. It is not a statute of prescription by which rights are acquired. Hence when an action of ejectment is brought, the defendant, before he can invoke the statute of limitations in his behalf, must show that he is in possession under color of title. The statute does not run in favor of the naked trespasser. Hence, when the defendant to an action of ejectment claims under a tax title, it must appear that he has such title to enable him to plead successfully the statute of limitations. It must appear that his possession is under color of title, else his plea of the statute of limitations will be ineffectual. Whether, therefore, such defendant is in possession under color of title — whether he has a tax title — is a question necessarily open to investigation and proof, notwithstanding the statute of limitations is pleaded, and as a necessary prerequisite to determine whether or not such plea shall be heard at all.

The question, therefore, as to the validity of a tax title cannot be evaded by a statute of limitation, where ejectment is brought by the original owner. Blackwell on Tax Titles, ch. 39, and authorities cited; see especially id. 671 et seq.; Groosbeck v. Seeley, 13 Mich. 329. The offer of the plaintiff, which was rejected by the court, was, in substance, to prove that there was no deed — no conveyance to the defendant, that nothing had passed under the tax law to the defendant; in a word that the defendant was in possession without title or color of title and hence was a mere trespasser. Had the plaintiff been allowed to show this, the defendant's plea of the statute of limitations would have been wholly ineffectual. The court, then, erred in excluding the evidence.

3. The plaintiff is a feme covert, and the statute of limitations did not run against her.

Points and authorities for defendant in error: —

1. The legislature of the State of Minnesota, by an act approved March 11, 1862, Laws of 1862, p. 35, § 7, enacted an express and positive statute of limitations, or repose, in words as follows, to-wit: "That any person or persons having or claiming any right, title, or interest, in or to any land or premises after a sale under the provisions of this act, adverse to the title or claim of the purchaser at any such tax sale, his heirs or assigns shall, within one year from the time of the recording of the tax deed for such premises, commence an action for the purpose of testing the validity of such sale, or be forever barred in the premises." Section 5 of the same act provides, that "such deed shall vest in the grantee therein an absolute title both at law and equity, except in cases where the tax returned delinquent shall have been actually paid." Section 2 of the same act provides, that "such lands so unredeemed, and upon which such delinquent taxes remain in whole or in part unpaid, shall, at said last named date, Nov. 1, 1862, become forfeited to the state." Section 99, of Sess. Laws of 1861, p. 30, provides as follows: "A tax deed shall be prima facie evidence in all cases of a legal and valid title in the party holding the same, or his assigns." See also Comp. Stat. 683, § 66; id. 685, § 80. It appears from sections 5 and 9 of the act of March 11, 1862, that the certificate of sale could have been returned to the auditor at any time after the sale, and thereupon a tax deed issued by him; and section 5 provides what such deeds shall contain. This act, in express terms, extends to and includes any and every person having or claiming any right or interest adverse to the claim of the purchaser at such sale. It cannot be denied that a feme covert is a person; nor is she under any disability from commencing an action at any time by reason of the marital relations, as she has done in this case. The masculine gender includes, in our statutes, females as well as males; and the word person includes bodies corporate and politic, as well as individuals. Comp. Stat. 114, §§ 2, 11. A special statute must prevail over a prior general statute. A subsequent statute, making a different provision on the same subject, repeals the former statute. The latest expression of the legislative will must prevail. 10 Wend. 549; Bacon's Abr., title, Stat. D; 11 Wend. 330; 4 Cow. 556; 21 Pick. 373; 9 Minn. [166]. The legislature has the power to enact a law of evidence, and provide that a tax deed shall be prima facie evidence in all cases of a legal and valid title in the party holding the same. Blackwell on Tax Titles, 79, and cases cited; 19 Curtis' Dec. 597; 12 N. Y. 541. As to penalty for non-payment of money when due, see 3 Minn [339].

2. This statute of limitations was passed March 11, 1862. It provided for a sale of lands for delinquent taxes, to commence on the second Monday in January, 1863, and to be adjourned without further notice till all such forfeited lands should be sold. The tax deed in this case was not recorded until May 28, 1863, and the year from that time allowed to commence an action in, did not expire till May 28, 1864. The period of limitation in this case was, therefore, practically, more than two years and two months. See Comp. Stat. 533, §§ 7, 8, 9, 10, 11, 12; id. 532, §§ 3, 4, 5, 6; id. 761, § 88; 2 Parsons Cont. 341 et seq.; 2...