Holmes v. Loughren

• Decision Date: 12 January 1906
• Docket Number: 14,586 - (145)
• Citation: 105 N.W. 558,97 Minn. 83
• Parties: IDA S. HOLMES v. JOSEPH LOUGHREN and Others
• Court: Minnesota Supreme Court

105 N.W. 558

97 Minn. 83

IDA S. HOLMES v. JOSEPH LOUGHREN and Others

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.

SYLLABUS

Judgment Roll -- Defective Service of Summons.

Action to determine adverse claims to a lot which the defendant owns in fee, unless his title has been divested by a tax judgment and sale under which the plaintiff claims title. The judgment recites that proof of the publication of the delinquent list has been filed with the clerk of the court, and the judgment roll contains a copy of the official paper in which the delinquent list was printed, to which is attached the printer's affidavit of publication, signed by him and purporting to have been sworn to before a notary public, but no notarial seal was affixed thereto. The description of the lot in the list as published is void for uncertainty. Held where the record sets forth the manner in which service of a summons or other jurisdictional notice was made, and such service is ineffectual to confer jurisdiction, it will not be presumed that a valid service was made in some other way.

Publication of Tax List -- Presumption.

The technical defect in the authentication of the printer's affidavit cannot be given the legal effect of expunging from the judgment roll the copy of the official paper and the printer's statement found therein, so that the presumption would obtain that there was another and correct list published. The judgment roll negatives any presumption that there was any other publication of the list.

Lack of Jurisdiction.

As to the lot in question there was no legal publication of the delinquent list, and the court had no jurisdiction to enter such judgment against it, and as to it the judgment is void.

Statute of Limitations.

A statute of limitations is not put in operation in favor of a party claiming under a tax sale, unless there is behind it a valid tax judgment.

Washburn, Bailey & Mitchell, for appellant.

Jaques & Hudson, for respondents.

OPINION

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...