Farnham v. Jones

• Decision Date: 02 April 1884
• Citation: 19 N.W. 83,32 Minn. 7
• Parties: Frank W. Farnham v. Jesse G. Jones and others
• Court: Minnesota Supreme Court

19 N.W. 83

32 Minn. 7

Frank W. Farnham v. Jesse G. Jones and others

Supreme Court of Minnesota

April 2, 1884

Plaintiff, claiming to be the owner of certain land in Cass county, brought this action in the district court for the counties of Crow Wing, Cass, Itasca and Aitkin, to recover the value of 2,160,000 feet of pine timber cut and taken away from such land by the defendants. The defendant Jones admitted the cutting and taking away of the timber, and pleaded title in himself to both the land and timber.

On the trial, before Stearns, J., a jury having been waived, it appeared that the plaintiff's title rested solely upon a tax sale made in September, 1881, for taxes delinquent in and prior to 1879, the validity of which was the main question in controversy. As prima facie evidence of title, the plaintiff was allowed to introduce in evidence, against defendants' objection, the certificate of tax sale, which was in the following form, (numerals being here substituted for words:)

"I F. B. Thompson, auditor of the county of Crow Wing, do hereby certify that at the sale of forfeited lands pursuant to real estate tax judgment entered in the district court in the county of Crow Wing, on the 20th day of August, 1881, in proceedings to enforce payment of taxes upon real estate delinquent in the year 1879 and prior years, for the county of Cass, which sale was held at Brainerd, in said county of Crow Wing, on the 29th day of September, the following described piece or parcel of land, situate in said county of Cass, state of Minnesota, to wit: (then follow descriptions of government subdivisions of land in divers sections and townships,) containing 6741.53 acres, more or less, was offered for sale to the highest bidder, and at said sale I did sell the said piece or parcel of land to J. A. Davis, for the sum of $ 219.29, that being the highest sum bid therefor and he having paid said sum, I do therefore, in consideration thereof, and pursuant to the statute in such case made and provided, convey the said pieces or parcels of land, in fee simple, to said J. A. Davis, his heirs and assigns forever.

"Witness my hand and official seal, this 29th day of November, 1881. F. B. Thompson,

"County Auditor."

It was admitted on the trial that the original real-estate tax-judgment book upon which the sale was made for which the above certificate was given, was lost and could not be found and the certified copy of such real-estate tax-judgment book in the auditor's office was introduced by defendants to show the invalidity of plaintiff's tax title. From this copy of the judgment book it appeared that, except on the last page, the name of the county in all places was left entirely blank, and nowhere was any county mentioned for the taxes in which the judgment was rendered, excepting only on the last page; that none of the pages of the book were signed by the clerk of the district court, except the last page, and that the land in question was not described on the last page but in about the middle of the book. This copy of the judgment also showed upon its face that it was for the taxes, interest and penalties delinquent for 1879 and prior years and also for 1880, without in any manner separating the taxes for 1879 and prior years from the taxes for 1880.

The court thereupon ordered judgment for the defendants, for the reason that it appeared from the certified copy that no tax judgment was ever entered against the land, and therefore the plaintiff never acquired any title thereto.

The plaintiff, upon a settled case and affidavits showing that the certified copy of the tax judgment was not in fact a correct copy of the original, moved for a new trial, on the ground of surprise. The motion was granted, and the defendants appealed.

Order reversed.

Babcock & Davis and Fred. Hooker, for appellants.

Chas. D. Kerr and Geo. W. Holland, for respondent.

OPINION

Vanderburgh, J.

The plaintiff, claiming title to the lands in controversy, brings trespass for the value of pine timber cut and taken away by the defendants from the same during the winter of 1882. The defendant Jones is admitted to be the owner of the land (320 acres) described in the complaint, unless the plaintiff has acquired title thereto by assignment from the purchaser upon an alleged sale thereof for delinquent taxes, in pursuance of the provisions of chapter 135, Laws 1881, "to enforce the payment of taxes which became delinquent in and prior to 1879." At the trial the court ordered judgment for the defendants on the ground of fatal jurisdictional defects apparent upon the record. The original tax-judgment book had been lost, and by consent the certified copy filed with the county auditor was admitted in evidence. The plaintiff afterwards applied for a new trial, which was granted upon the ground of surprise.

We think a proper case was made therefor upon the affidavits on which the motion was made, by which it is made to appear that the copy of the judgment introduced in evidence was not in fact a correct transcript of the original as respects the particular errors and omissions which the court deemed material at the trial, and which fact was not known or discovered by plaintiff or his counsel until subsequent to the trial. The clerk, who had been custodian of the lost record, and who appears to be a material witness for plaintiff on the subject, was sick and unable to be present at the trial, and the original record had been lost several months previous. We think the facts alleged -- which must be taken as established for the purposes of the motion -- that the record as filed with the auditor has, since the trial, been discovered not to be a correct copy of the original, and that plaintiff had no reason to doubt the accuracy of the official certificate, and no apparent means at hand at the trial to detect its inaccuracy, and that he was in fact misled thereby, constitute a case of legal surprise. That plaintiff failed to ask for a continuance at the trial, under the circumstances, certainly shows no want of ordinary prudence. Nudd v. Home Ins. Co., 25 Minn. 100. The order granting a new trial should therefore be affirmed, unless it is apparent from the record, which contains the pleadings, evidence, and proceedings upon the trial, that a new trial must necessarily lead to the same result.

The act of 1881 was not intended to provide for a sale and disposition of lands legally forfeited to and already the property of the state, but to enforce the payment of taxes which became delinquent in and prior to 1879, and which remained unpaid, and whether the sales or forfeitures...