Mitchell v. McFarland

• Decision Date: 21 December 1891
• Citation: 47 Minn. 535,50 N.W. 610
• Parties: MITCHELL v MCFARLAND ET AL.
• Court: Minnesota Supreme Court

47 Minn. 535

50 N.W. 610

MITCHELLvMCFARLAND ET AL.

Supreme Court of Minnesota.

Dec. 21, 1891.

(Syllabus by the Court.)

1. The notice required by Gen. St. 1878, c. 11, § 121, to terminate the right of redemption from a tax-sale, should be directed to and served on the person in whose name the land is assessed, even though that person is the holder of the tax-sale certificate.

2. When, in an action under the statute to determine adverse claims to real estate, the defendant sets up in his answer his own claims to the real estate, he waives the objection that the land is not vacant, or the plaintiff not in possession.

3. A certificate of tax-sale has the prima facie effect given it by statute, even where, because of its loss or destruction, its contents are proved by parol.

Appeal from district court, Stearns county; L. L. BAXTER, Judge.

Action by William B. Mitchell against Joseph McFarland and others to determine adverse claims to certain land. Judgment for defendants. Plaintiff appeals. Reversed.

G. W. Stewart, for appellant.

Charles J. Berryhill, for respondents.

GILFILLAN, C. J.

The tax-sales to plaintiff having been found in all respects regular, the only question for the court to determine, in order to find the title was in plaintiff, was whether the right to redeem had been terminated by service of the notices required by Gen. St. 1878, c. 11, § 121. These notices are found to have been regular and sufficient in form, and to have been properly served, except that they were directed to and served on the plaintiff. At the times of issuing and serving the notices the land was assessed in the name of plaintiff. Whether it would or would not have been good policy in the statute to provide that the notice should be directed to and served on some other than the person in whose name the land is assessed, when that person is the purchaser at the tax-sale, is not for us to determine. The statute provides that it shall be directed to and served on the person in whose name the land is assessed, and it makes no exception of any case. That it must be so directed and served has been three times decided by this court. Association v. McComber, 41 Minn. 20,42 N. W. Rep. 543;Wakefield v. Day, 41 Minn. 344,43 N. W. Rep. 71; and Sperry v. Goodwin, 44 Minn. 207,46 N. W. Rep. 328. In each of the last two of these cases the person in whose name the land was assessed, and whom the court held to be the proper person to whom to direct and upon whom to serve the notice, was the holder of the tax-sale certificate. In the second case the court said: “We do not think, therefore, there is any implied exception in the application of the statutory requirement in a case like this.” The decision of the court below that the notices were insufficient to terminate the right of redemption was error.

The action is under the statute to determine adverse claims, the complaint alleging plaintiff's ownership, and that the land is vacant. The answer denies that plaintiff is the owner, and also that the land is vacant; alleges the patenting...