Kern v. Clarke

• Decision Date: 08 November 1894
• Docket Number: 8828,8840
• Citation: 60 N.W. 809,59 Minn. 70
• Parties: Anton Kern v. Nehemiah P. Clarke
• Court: Minnesota Supreme Court

60 N.W. 809

59 Minn. 70

Anton Kern v. Nehemiah P. Clarke

Nos. 8828, 8840

Supreme Court of Minnesota

November 8, 1894

Argued October 29, 1894

Appeal by defendant, Nehemiah P. Clarke, from an order of the District Court of Wadena County, G. W. Holland, J., made March 14, 1894, denying his motion for a new trial.

Appeal also by defendant from an order of the same court made December 4, 1893, amending a tax judgment entered in said court August 3, 1883.

The plaintiff, Anton Kern, claiming to have a valid tax title to the northeast quarter of the southeast quarter and the southeast quarter of the northeast quarter of Section twenty four (24) T. 137, R. 35, containing eighty acres in Wadena county, brought this action in February, 1893, against Clarke to recover $ 1,300 damages for cutting and converting the pine timber on it. Clarke answered that he had long owned the land and that plaintiff's tax title was void. On the trial December 4, 1893, it appeared from the evidence that the taxes on the land for the year 1882 were not paid and that in the list of delinquent taxes filed by the county auditor with the clerk of the District Court, June 15, 1883 this land was described as follows: N. E. 4, S. E. 4, and S E. 4, N. E. 4, S. 24, T. 137, R. 35. It was described in the same way in the tax judgment entered August 3, 1883, and also in the copy judgment given to the county auditor. On September 17, 1883, the auditor offered the land for sale. No one bid and it was struck off and sold to the state for $ 10.24, the amount of the judgment, interest and costs. No redemption was made and on May 19, 1886, the land was granted and sold by the state to E. H. Rossier and Emil Rossier for $ 36.84 and they received from the auditor the appropriate instrument conveying to them all the title of the State to the land. They on January 21, 1893, conveyed the land to the plaintiff. Discovering the defect in the judgment he applied to the court on notice and affidavits to have it amended nunc pro tunc and on the same day of the trial of this action the court granted the motion and directed its clerk to draw a short horizontal line above the figure 4 (four) wherever it occurs in the description of subdivisions of the section and to write the figure 1 (one) above this line so that the description as amended should read as follows: N. E. 1/4, S E. 1/4, and S. E. 1/4, N. E. 1/4, S. 24, T. 137, R. 35. The defendant objected to the order. The clerk made the alteration and plaintiff then offered in evidence the judgment as amended and it was received, defendant objecting. Plaintiff had a verdict for $ 975. Defendant moved for a new trial but was refused and he appeals. He also appeals from the order allowing the tax judgment to be amended.

G. W Stewart, for appellant.

Coppernoll & Willson, for respondent.

OPINION

Buck, J.

This action involves the validity of a tax judgment, and the sale of real estate under it. The delinquent list described the land as being the "S. E. 4, N. E. 4, and N. E. 4, S. E. 4, S. 24, T. 137, R. 35," but the published list described the land as being the "S. E. 1/4, N. E. 1/4, and N. E. 1/4, S. E. 1/4," while the tax judgment described the land the same as in the delinquent list. The description in the delinquent list and in the tax judgment were clearly insufficient, and the tax judgment was void upon its face. We need not enter into any discussion upon this point, for the question was distinctly passed upon by this court in Keith v. Hayden, 26 Minn. 212, (2 N.W. 495;) and that case was cited approvingly in Williams v. Central Land Co., in 32 Minn. 440, (21 N.W. 550,) and Knight v. Alexander, 38 Minn. 384, (37 N.W. 796.) That such descriptions are void for uncertainty ought to be deemed the settled law of this state, without further litigation or controversy.

The next point is as to the power or authority of the trial court to permit the plaintiff, after the sale, to amend the tax judgment so as to read as follows: "S. E. 1/4, N. E 1/4, and N. E. 1/4, S. E. 1/4," instead of "S. E. 4, N. E. 4, and N. E. 4, S. E. 4," as originally described in the judgment. This amendment was permitted by the court upon application of the plaintiff. The judgment was entered on the 3d day of ...