Minn. Debenture Co. v. Scott

Citation119 N.W. 391,106 Minn. 32
PartiesMINNESOTA DEBENTURE CO. v. SCOTT, County Auditor, et al.
Decision Date29 January 1909
CourtSupreme Court of Minnesota (US)

OPINION TEXT STARTS HERE

Appeal from District Court, Hennepin County; David F. Simpson, Judge.

Action by the Minnesota Debenture Company against Hugh R. Scott, county auditor of Hennepin county, and others. Finding for defendants. From an order denying a new trial, plaintiff appeals. Affirmed.

Syllabus by the Court

Sections 936-940, Rev. Laws 1905, are here construed, and held to provide that lands bid in to the state and not assigned to purchasers within three years from the sale at which they are offered to purchasers at the highest price are expressly subject to redemption by the owner or other person duly and properly entitled to redeem. Upon redemption the person redeeming must pay the full consideration of the sale, but is entitled to a return from the state of the surplus above the amount due the state.

Where lands have been sold for taxes, the state cannot impeach the title by a resale of the land for taxes due and unpaid for prior years. Gates v. Keigher, 99 Minn. 138, 108 N. W. 860, followed and applied.

Where the state undertakes to tack taxes anterior to plaintiff's tax title to a subsequent forfeited sale, the objection of the excessive amount should be interposed by answer. Where no such objection is interposed, the mere excess in amount of the judgment does not necessarily avoid it.

The designation of the newspaper in which is to be published the delinquent tax list is valid, if made at an adjourned meeting. Banning v. McManus, 51 Minn. 289, 53 N. W. 635, followed and applied.

While the means of obtaining jurisdiction to enter a judgment for delinquent taxes must conform in every essential respect to the statute, not every failure to conform to recognized practice, grammatical requirement, or technically correct phraseology will invalidate a designation of a newspaper in which to public the delinquent tax list, which is substantially in accord with statutory requirements.

Here the certified copy of the resolution recommended the acceptance of the bid of the Minneapolis Tribune, and that the contract be awarded to ‘them’ upon the filing of a proper bond. This resolution was adopted. It is held that a person of ordinary intelligence, examining the record, would have understood that the newspaper named the ‘Minneapolis Tribune’ had been designated, and that the judgment based upon publication in that newspaper was not void.

Section 936, Rev. Laws 1905, is a revision and restatement of section 52, c. 2, p. 28, Gen. Laws 1902, and reference to lands forfeited under section 936 is in legal effect a reference to lands forfeited under section 52, c. 2, p. 28, Gen. Laws 1902.

Where bids at a tax sale were made on November 15th ‘just before the close of the day, nearly 5 o'clock,’ the hour at which the offices closed, and the full consideration was paid on the day following, there was a compliance with the statutory requirement that the payment be ‘immediately’ and ‘forthwith.’

The form of the certificate prescribed by the Attorney General for the forfeited sale in 1906 is held valid. Tryon & Booth, for appellant.

Jas. E. O'Brien, Al. J. Smith, and Wm. C. Leary, for respondents.

JAGGARD, J.

Plaintiff, as the owner in fee under sale for taxes assessed for the year 1898 and in possession of certain premises in Hennepin county, Minn., brought this action against defendant, which, in its final form, resolved itself into an action to determine adverse claims. The defendant bought the land at a tax sale held in November, 1906, for forfeited lands. The sale was based on a judgment in 1902 for 1900 taxes, under which the lands were bid in for the state in May, 1902. The sale included the 1902 and 1903 taxes then delinquent, and also the current tax for 1905, and, listed with it, the taxes for 1894, 1895, 1896, and 1897, which had previously been refunded to the plaintiff. A considerable surplus was bid and paid above all taxes. The trial court found that plaintiff was the owner in fee, and gave to defendant a lien for the full amount of the forfeited sales, including the surplus and current and refunded taxes. Plaintiff moved for a new trial, and appealed from the order denying the motion.

1. The preliminary question raised by the appeal is whether plaintiff, upon attempted redemption, was entitled to deduct the amount bid and for which the land was sold above the amount due the state. This involves immediately a construction of sections 936-940, Rev. Laws 1905. The substance of these provisions is that land bid in to the state, and not assigned to purchasers or redeemed within three years from the sale at which they are offered, shall become the absolute property of the state. The State Auditor, after notice, offers for sale these lands so forfeited. The purchaser receives a certificate, and is entitled to a deed from the state after notice of the expiration of the time for redemption and proof of such service. Until the expiration of the time specified in such notice for redemption, the land is subject to redemption as provided in section 946. The proceeds of the sale are divided between the county and the state, and the excess, if any, above the taxes, penalties, interest, and costs charged upon the land, is included in the draft of the State Auditor to the State Treasurer, and is paid for the benefit of the state. Section 946 provides, so far as here involved, that the person redeeming shall pay to the county treasurer ‘the amount paid by such purchaser, with interest at the rate for which such parcel was sold, together with subsequently accruing costs.’ Subdivision 3. These sections naturally suggest the construction that at the end of the three years land bid in to the state and not redeemed or sold is absolutely forfeited to the state. In point of fact, however, the state undertakes to sell, not an absolute, but a qualified, interest. It expressly recognizes the right of the owner and other persons sufficiently interested in the property to redeem the land. This is obviously inconsistent with the conception of the absolute and unqualified property in the state. This view accords with the history, not only of previous, but of subsequent legislation, as was set forth in State v. Scott (Minn.) 117 N. W. 417. That case, however, was governed by the General Laws of 1905, and arose after a significant change was made in the language of the law by section 1, c. 430, p. 612, Gen. Laws 1907. As was pointed out in it, the purpose of these statutory provisions is to secure revenue from public lands as speedily and as inexpensively as may be. No valid reason appears for interpreting these provisions so as to put the state in the light of a speculator by selling the land for more than the charge due the state against it. The provision for paying the excess into the state is not necessarily inconsistent with this conception. The land may never be redeemed. In that case the surplus will remain in the state treasury. This construction gives adequate meaning to the section. In case of redemption the state would reasonably be required to pay to the owner of the land the excess which was received for his benefit. The analogy of mortgage foreclosure sale is apt. The state, like the mortgagee, has a lien. It forecloses that lien. Upon redemption the full sum of the sale is paid to the purchaser. If there be any surplus, and if there be redemption by the mortgagor, the mortgagor is entitled to the surplus. In the case at bar, therefore, as far as the matter of surplus is concerned, this requirement of the payment by the owner of the land of the full amount of the tax sale conforms with the express language of section 946, subd. 3. It follows, accordingly, that plaintiff was not entitled to redeem from the sale for the amount which excluded the surplus. Questions as to how the landowner can recover the surplus are not before us.

2. It is clear that, where lands have been sold for taxes, the state cannot impeach the title by a resale of the land for taxes due and unpaid for prior years. State v. Camp, 79 Minn. 343, 82 N. W. 645;Gates v. Keigher, 99 Minn. 138, 108 N. W. 860. Therefore, if timely objection had been raised, the state could not have collected the taxes for 1894, 1895, 1896, and 1897. That objection, however, should have been interposed by answer. The plaintiff is in a situation in which, if he had applied to the court to open or correct the judgment, he would have been confronted with the fact that the land had been sold to an innocent third person for value. Mere excess in the amount of the judgment did not necessarily avoid it. Whether other relief would be available for the plaintiff in this matter is not before us.

3. This naturally leads to the consideration of the question whether the jurisdiction of the court to enter judgment was obtained in accordance with statute. One objection is that the certified copy of the board of commissioners' resolution designating the newspaper for the publication of the delinquent tax list, which is jurisdictional (Eastman v. Linn, 26 Minn. 215, 2 N. W. 693;Merriman v. Knight, 43 Minn. 493, 45 N. W. 1098;Kipp v. Dawson, 31 Minn. 373, 17 N. W. 961,18 N. W. 96), was dated the 13th of January. Section 1581, c. 11, Gen. St. 1894, requires that the newspaper shall be designated by the board of county commissioners at their annual meeting in January. In Hennepin county this has been held to mean the meeting held on the first Monday in January. Reimer v. Newel, 47 Minn. 237, 240, 49 N. W. 865. If this were all the record disclosed, the designation would have had no legal effect. It appears, however, from the records of the county commissioners introduced in evidence, that at the annual meeting of the first Monday in January the board adjourned to January 13th and that it met on January 13th pursuant to adjournment. The designation at...

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