Bonham v. Weymouth

• Decision Date: 03 July 1888
• Parties: BONHAM v WEYMOUTH ET AL.
• Court: Minnesota Supreme Court

39 Minn. 92

38 N.W. 805

BONHAMvWEYMOUTH ET AL.

Supreme Court of Minnesota.

July 3, 1888.

(Syllabus by the Court.)

In an action for partition, the whole matter of title, and of the rights of the parties in the premises sought to be partitioned, may be determined, and a partition ordered, whenever the plaintiff shows himself seized of the requisite title, whether the land is held or claimed adversely to him or not.

A tax deed of “forfeited lands,” executed under Gen. St. 1866, c. 11, § 138, or section 156, is not prima facie evidence of title, without preliminary proof aliunde the deed of authority from the state auditor to the county auditor to make the sale recited in the deed.

Such deed must recite a compliance with all the terms of the power, and the existence of such facts as are essential, under the authority, to its validity; and no such fact not embraced in the recitals, will be presumed. Where the “instructions to the county auditor were to sell a tract of land” to such persons as will pay therefor the amount of taxes, “interest, and charges due thereon,” and the deed recited that the purchaser “offered to pay for the land a specified sum, which offer was accepted, being the highest offer therefor,” without stating or reciting that this sum was equal to the amount of taxes, interest, and charges due on the land, held, that the instructions did not tend to prove any authority to the county auditor to make the sale recited in the deed.

Under Gen. Laws 1874, c. 1, it is essential to the jurisdiction of the court, as to any tract of land, that the published delinquent list state the amount of tax delinquent against such tract; and, if it fails to do so, the court acquires no jurisdiction to render judgment against the piece or parcel as to which such omission occurs.

The placing of two figures opposite the description of a tract, in a column headed merely “Amt.,” but without any dollar or other mark, or anything else to indicate what the figures were intended to represent, is not a sufficient statement of the amount of tax to give the court jurisdiction to enter judgment against the tract for any sum.

Appeal from district court, Hennepin county; YOUNG, Judge.

Action for partition by Ann M. Bonham against Lowell S. Weymouth et al. Defendants appeal from a judgment in favor of plaintiff.

Spry & Harvey and Howe Paige, (J. M. Shaw, of counsel,) for appellants.

Forrest & Van Cleve, for respondent.

MITCHELL, J.

This was an action for partition of real property, of which the plaintiff alleges she owns one undivided third, and the defendant the other two-thirds. The answer denies that plaintiff owns any part of the premises, and alleges that defendant owns the whole.

1. The defendant makes the point that the issue of adverse claim of title cannot be tried in an action for partition. The old rule undoubtedly was that the applicant for partition must be actually or constructively in possession of the premises sought to be divided, and that, if it was held adversely to him, a court of equity would remit him to a court of law to establish his title. Whatever reasons for such a rule there may have been when the distinction between the legal and equitable jurisdictions existed, each exercised by separate tribunals, now that the distinction is abolished, and equitable and legal rights may be enforced, and equitable and legal remedies obtained, in the same action and in the same court, there is no reason, in principle, why the whole matter of title and partition may not be tried, and all the rights of the parties fully determined, in one action. Such a practice is eminently convenient. Independently of any statute affecting the question, the tendency of the courts is to do away with those limitations attending proceedings in partition, and do full justice to the parties in one action. Hence, whenever the question is one of first impressions, not controlled by former decisions, the courts are inclined to resolve it in favor of taking jurisdiction, where the plaintiff shows himself seized of the requisite title, whether the lands sought to be partitioned are held or claimed adversely to him or not. Freem. Co-Tenancy, § 450. Our statute on partition evidently contemplates such a practice. Gen. St. 1878, c. 74. It provides for making parties to the action all persons who have or claim an interest in the property; also that partition shall not be ordered until the title to the property, and the rights of the parties, are established by evidence or stipulated, and that, when this is done, judgment of partition shall be rendered, and the share of each party set off to him according to their respective right as determined in the action.

2. To prove title in himself to the undivided third claimed by plaintiff, defendant offered in evidence a tax deed (Exhibit B) dated February, 1868, from the county auditor to one Austin, under which defendant claims through mesne conveyances. This deed purported to be made under the provisions of Gen. St. 1866, c. 11, relating to the sale of lands forfeited to the state, to which sections 137, 138, 156, and 157 are applicable. This sale purports to have been made particularly under section 156. The deed was excluded by the court on the ground, among others, that no authority in the auditor to make the deed had been shown. This is assigned as error; defendant's contention being that the deed itself, which recites such authority from the state auditor, is, by section 138, made prima facie evidence of title, without any preliminary proof aliunde the instrument. If the question was one of first impressions, it might admit of argument whether, under a fair construction of sections 138 and 140, deeds executed under either section 138 or 139, if properly proved, are not prima facie evidence of title, without any preliminary proof whatever. But it was held as long ago as Greve v. Coffin, 14 Minn. 345, (Gil. 263,) that a deed executed under section 139 is not prima facie evidence of title without proof dehors the instrument that the land had not been redeemed when the deed was executed. If preliminary proof of this fact is necessary in such a case, it would seem to follow that, in the case of a deed executed under section 138, preliminary proof would be necessary of authority from the state auditor to the county auditor to make the sale; for as, in the first case, it is only where the land is unredeemed that the county auditor is authorized to make a deed, so, in the latter case, it is only when he is directed to sell by the state auditor that he has authority to do so, and then only upon the terms directed. See section 137. That this was the construction put upon the statute by the court is...