Helmer v. Shevlin-Mathieu Lumber Co.

• Citation: 129 Minn. 25,151 N.W. 421
• Decision Date: 05 March 1915
• Docket Number: No. 19087[279].,19087[279].
• Parties: HELMER v. SHEVLIN-MATHIEU LUMBER CO.
• Court: Supreme Court of Minnesota (US)

129 Minn. 25

151 N.W. 421

HELMER

v.SHEVLIN-MATHIEU LUMBER CO.

No. 19087[279].

Supreme Court of Minnesota.

March 5, 1915.

Appeal from District Court, Itasca County; C. W. Stanton, Judge.

Action by John Helmer against the Shevlin-Mathieu Lumber Company. From judgment for plaintiff, defendant appeals. Affirmed.

Syllabus by the Court

In this action to recover for timber cut and removed by defendant from land claimed to be owned by plaintiff, it is held, defendant having moved for judgment notwithstanding the verdict, but not for a new trial, it waived its right to the latter, and on an appeal from the judgment assignments of error in the admission of evidence or in the charge that bear only on the right to a new trial will not be considered.

The evidence conclusively shows that a deed under which defendant claimed title to the land was a forgery.

Tax deeds under which defendant claimed title held void on their face, and, further, that even if valid the land was subject to redemption, and the notices of expiration of the time to redeem were void, under De Laurier v. Stilson, 121 Minn. 339, 141 N. W. 293.

Plaintiff was the record owner. The fact that he had not paid the taxes on the property, or that he had not redeemed from tax sales thereof on which the state was the purchaser, did not prevent his maintaining an action against a stranger for cutting and removing timber on the land.

Plaintiff was not estopped by hi conduct from claiming ownership of the land or from maintaining this action.

There was nothing in the transaction by which plaintiff acquired title to the land which makes it void as against public policy, or prevents plaintiff from obtaining relief in this action. Powell & Simpson, of Minneapolis (Ernest C. Carman, of Minneapolis, on the brief), for appellant.

Alford & Hunt and George H. Spear, all of Duluth, for respondent.

BUNN, J.

This action was to recover for timber cut by defendant from an 80-acre tract of land in Itasca county, claimed by plaintiff to have been owned by him at the time of the cutting. There was a verdict for plaintiff. Defendant moved for judgment notwithstanding the verdict, but not for a new trial. The motion was denied, judgment was entered on the verdict, and defendant appealed therefrom to this court.

[1] 1. Defendant not having moved for a new trial, we have only to consider whether there was error in denying the motion for judgment. Questions as to errors in the admission of evidence or in the charge are not before us, as such errors would be immaterial on the question of defendant's right to judgment, and it has waived its right to a new trial by failing to ask it. Bragg v. C., M. & St. P. Ry. Co., 81 Minn. 130, 83 N. W. 511;Krumdick v. Chi. & N. W. Ry. Co., 90 Minn. 260, 95 N. W. 1122; N. W. Marble & Tile Co. v. Williams, 151 N. W. 419.

Our inquiry is therefore confined to the question whether there was evidence reasonably tending to sustain a verdict for plaintiff. The chief issue was as to the ownership of the land at the time the timber was cut. The facts bearing on this issue are as follows:

Thomas Simpson was the patentee of the land. The receiver's receipt was issued to him October 22, 1885, and the patent March 20, 1886. Neither was recorded until 1909, when plaintiff, after a deed from Simpson to himself, caused the patent to be placed of record. Simpson seems to have disappeared. May 27, 1905, one Shaw obtained tax deeds to the land. August 15, 1905, there was recorded what purported to be a deed from Thomas Simpson conveying the land to one J. D. Campbell. The tax deeds were recorded August 31, 1905. November 15, 1905, Campbell gave to Thomas H. Shevlin, a quitclaim timber permit, granting the right to cut and remove the timber on the land within five years. This was recorded in December, 1905. November 18, 1905, Shaw, the grantee in the tax deeds, quitclaimed to Thomas H. Shevlin. This instrument was recorded November 27, 1905. Defendant obtained whatever title it had to the land in question through a deed in 1909 from Shevlin. It cut and logged the timber on the lands in November, 1910.

March 21, 1907, Thomas Simpson conveyed the land in question to the plaintiff by a quitclaim deed. Plaintiff's claim of title, and his claim of a right to recover in this action, is based upon this deed.

[2] 2. The prior deed from Simpson to Campbell was a forgery. This was one of the litigated questions on the trial, and perhaps the chief one; but the evidence is such that there is no fair question here that Simpson never executed this deed. He did execute the deed to plaintiff in 1907. It follows that plaintiff was the owner of the land at the time defendant cut the timber, unless the tax title was good.

[3] 3. As to the tax title: The land was bid in by the state in May, 1902, and, not being redeemed or assigned within three years, became the ‘absolute property of the state.’ Laws 1902, c. 2, provided that such lands should be offered at public annual sales, after due publication and notice thereof, and that the purchaser should receive a certificate in such form as the Attorney General may prescribe. The tax deeds in question were issued May 27, 1905. They do not comply with the form prescribed under the act of 1902 in several particulars. They do not state what year's taxes were delinquent, or that the land was offered for sale, or that it is subject to redemption, or that notice was published. On the contrary, the deeds recite that the state auditor directed the county auditor to sell the land at private sale. The act of 1902 repealed the former law, found in G. S. 1894, § 1616. These deeds were, we think, void on their face. Even if this were not so, the attempt made to cut off the right of redemption was quite plainly ineffectual. This right...