Holmes v. Loughren

• Decision Date: 12 January 1906
• Docket Number: Nos. 14,586 - (145).,s. 14,586 - (145).
• Citation: 97 Minn. 83
• Parties: IDA S. HOLMES v. JOSEPH LOUGHREN and Others.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

97 Minn. 83

IDA S. HOLMES v. JOSEPH LOUGHREN and Others.¹

Nos. 14,586 - (145).

Supreme Court of Minnesota.

January 12, 1906.

Appeal by plaintiff from a judgment of the district court for St. Louis county, entered pursuant to the findings and order of Cant, J. Affirmed.

Washburn, Bailey & Mitchell, for appellant.

Jaques & Hudson, for respondents.

START, C. J.

This is an appeal from the judgment of the district court of the county of St. Louis in favor of the defendants in an action to determine adverse claims to real estate.

The complaint alleges that the plaintiff is the owner in fee of lot 12, block 11, West Duluth, First division, according to the plat thereof, which is vacant and unoccupied, that the defendant claims some title to or interest therein, which is without any right or foundation, and prays that the court adjudge that the plaintiff is the owner in fee of the lot and that the defendant has no title to or interest in it. The answer denied the allegations of the complaint, except the allegations that the lot was vacant and unoccupied and the defendant claimed an interest therein. The answer then alleged that the defendant was the owner in fee of the lot, that the plaintiff claimed an interest in or lien upon it, but in fact she had none, and demanded judgment that the defendant was the owner in fee of the lot. The trial court found and decided that the defendant was the owner in fee of the lot and that the plaintiff had no title to or lien thereon, and judgment was so entered in favor of the defendant.

The undisputed facts show that the defendant is the sole owner in fee of the lot and that the judgment of the court is right, unless his title thereto has been divested by an unassailable tax title. The plaintiff claims that she has such a tax title to the lot, and, further, that, whether such title was or was not originally valid, the statute of limitations had run before the commencement of the action upon his tax deed, so as to prevent the defendant from now questioning its validity. The record, then, presents two questions for our consideration. First. Has the plaintiff a valid tax title to the lot? Second. Does the statute of limitations prevent the defendant from showing the fact that he is still the owner in fee of the lot by showing that the tax title is invalid?

1. The tax deed under which the plaintiff claims title was issued upon the sale of the lot pursuant to an alleged real estate tax judgment dated March 13, 1897, and entered in the district court of the county of St. Louis in proceedings under the charter of the city of Duluth to enforce the payment of sprinkling assessments. The defendant urges several defects in the tax proceedings which he claims render the tax judgment void. We find it necessary to pass upon only one of the alleged defects. The charter provisions applicable to this case require that the city comptroller shall give at least twenty days' notice by publication in the official paper of the city of his intended application to the district court for judgment upon his certified statement of delinquent assessments. Such notice and list must specify the assessments, description of the property against which the judgment is demanded, and require all persons interested to appear before the court at the time stated in the notice. The comptroller is further required to cause a copy of his notice of intended application, together with the affidavit of publication made by the printer or publisher of the official paper and the certified statement of said delinquent assessments, to be filed with the clerk of said district court at or before the application for judgment. Each of such statements shall constitute a separate proceeding or suit, and shall be docketed by the clerk of court in a suitable record book kept for that purpose.

The judgment roll in the tax proceedings in this case received in evidence shows that the comptroller, in his written application to the court for judgment against the several tracts of land described in the delinquent list, stated that he had caused notice of such application, with the delinquent list, to be published in the official newspaper, and, further, that he had caused due proof thereof to be filed in the office of the clerk of the court. The judgment roll contains a copy of the official paper of the city in which the notice of application for judgment, with the delinquent list, is printed, and attached to it is a statement of the publisher and printer of the official paper, in the form of an affidavit, stating that the annexed copy of the printed notice was published in his paper for ten successive days, giving the date of the first and of the last of such publications. The affidavit is subscribed by him and purports to have been sworn to before a notary public, who officially signed the jurat, but he failed to affix thereto his official seal. The delinquent list published with this notice describes the land in controversy, under the headings "Name of Supposed Owner," "Subdivision...