Kipp v. Collins

• Decision Date: 25 May 1885
• Citation: 23 N.W. 554,33 Minn. 394
• Parties: Sylvester Kipp and another v. James Collins
• Court: Minnesota Supreme Court

23 N.W. 554

33 Minn. 394

Sylvester Kipp and another v. James Collins

Supreme Court of Minnesota

May 25, 1885

Ejectment. Appeal by plaintiffs from a judgment of the district court for Anoka county, where the action was tried by Koon, J., without a jury.

Defendant's title was under a judgment and sale, in 1875, for taxes for the year 1874. The tax judgment was in the form prescribed by Laws 1874, c. 1, § 116, excepting that the following words, found in that form after the words "and no answer having been filed," were omitted therefrom, viz "by any person, company or corporation, to the taxes upon any of the pieces or parcels of land hereinafter described, and more than twenty days having elapsed since the last publication of said notice and list."

The tax certificate was duly acknowledged, and was in the following form, viz.:

"I O. L. Cutter, the auditor of the county of Anoka, state of Minnesota, do hereby certify that at the sale of lands pursuant to the real estate tax judgment entered in the district court in the county of Anoka, on the 3d day of September, A. D. 1875, in proceedings to enforce the payment of taxes delinquent upon real estate for the county of Anoka which sale was held at Anoka, in said county of Anoka, on the 28th day of October, 1875, the following described piece or parcel of land situate in said county of Anoka, state of Minnesota, to wit:

"The west half of the north-west quarter and the north-west quarter of the south-west quarter, in section seventeen, (17,) township thirty-two, (32,) range twenty-five, (25,) was first offered to the bidder who would pay the amount for which the same was subject to be sold for the shortest term of years in said piece or parcel, and, no person having offered to pay such amount for a term of years, I did sell the fee of said piece or parcel of land to James Collins for the sum of three and 53-100 dollars, 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 piece or parcel of land in fee-simple to the said James Collins, his heirs and assigns forever, subject to redemption as provided by law.

"Witness my hand and official seal this 28th day of October, 1875.

"O. L. Cutter,

[Seal.] "County Auditor."

Judgment affirmed.

S. & O. Kipp, for appellants.

The certificate of sale is fatally defective, because it fails to substantially comply with the statutory form and does not show a sale made in conformity with the statute. Blackwell on Tax Titles, 210, 368; Davison v. Gill, 1 East, 64; Grim v. O'Connell, 54 Cal. 522; Hubbell v. Campbell, 56 Cal. 527; Smith v. Hileman, 1 Scam. 323; Long v. Burnett, 13 Iowa 28; Boardman v. Bourne, 20 Iowa 134; Sutton v. Stone, 4 Neb. 319; Williams v. McLanahan, 67 Mo. 499; Atkins v. Kinnan, 20 Wend. 241; Condit v. Blackwell, 22 N.J.Eq. 481; Chandler v. Spear, 22 Vt. 388; Lain v. Shepardson 18 Wis. 59; Wakeley v. Mohr, 18 Wis. 321; Kreuger v. Knab, 22 Wis. 429; North v. Wendell, 22 Wis. 431.

The failure to deliver a certified copy of the judgment is fatal. A valid precept in the hands of the officer is as necessary as the judgment itself, and must be established by the evidence to make the tax deed valid. Hilliard on Taxation, 500, 506; Hinman v. Pope, 1 Gilman, 131; Atkins v. Hinman, 2 Gilman, 437; Job v. Tebbetts, 5 Gilman, 376; Spellman v. Curtenius, 12 Ill. 409; Pitkin v. Yaw, 13 Ill. 251; Manly v. Gibson, 14 Ill. 136; Elston v. Kennicott, 46 Ill. 187; Holbrook v. Dickinson, 46 Ill. 285; Cottingham v. Springer, 88 Ill. 90; Doughty v. Hope, 3 Denio, 594; Sanborn v. Cooper, 31 Minn. 307.

The publication of the notice of sale on October 2d and 9th, for a sale on October 26th, was insufficient. Cooley on Taxation, 335; State v. Brown, 22 Minn. 482; Greve v. St. P., etc., R. Co., 25 Minn. 327; Wilson v. Thompson, 26 Minn. 299.

Hammons & Hammons, for respondent.

OPINION

Gilfillan, C. J.

The statute under which this tax sale was had prescribes (Laws 1874, c. 1, § 116,) that the judgment "shall be substantially in the following form." Then follows the form. The judgment need not follow the form literally. If it contain the substance, it is enough. It is not every recital in the form that is of substance to the judgment -- that is, essential to its validity. There are certain recitals of fact in the form, the falseness of which, inserted in the judgment, will not affect its validity. The form given commences with the title of the proceeding; then follows a recital of jurisdictional facts, -- i. e., of the filing of the list, and the publication of the list and notice; after which follow the recital of matters only of procedure after jurisdiction acquired, -- i. e., of no answer having been filed, and of more than 20 days having elapsed since the last publication of the list and notice, -- and then follows the determination or judgment. This last, though it need not be expressed in the judgment in the precise words of the form, should contain every element of it, otherwise there would be a judgment such as the statute does not authorize. The recital that no answer has been filed, and that more than 20 days since the last publication of the list and notice have elapsed, may be false; there may have been answers filed, and the 20 days may not have elapsed at the time of entering the judgment; but that would not affect its validity as a judgment. It would be only a case of irregularity, which would make the judgment liable to be set aside, but would not make it void. Recitals on the truth or falsity of which the judgment does not depend for its validity, can hardly be deemed matters of substance in determining its validity. We conclude, therefore, that the omission of the recitals of no answer having been filed, and of more than 20 days having elapsed, does not impair the judgment. That being valid on its face, it raises the presumption of jurisdiction in the court to render it, -- a presumption that can be removed, if at all, only by proof that it had not jurisdiction. That the defendant undertook to establish the jurisdictional facts by other proofs, and that such other proofs fell short, did not lessen the force of the presumption.

The judgment, after determining the amount for which each parcel of land is liable, adjudges that unless that amount be paid such parcel be sold as provided by law to satisfy such amount. The statute (Laws 1874, c. 1, § 122...