O'Mulcahy v. Florer

• Decision Date: 21 February 1881
• Citation: 8 N.W. 166,27 Minn. 449
• Parties: William O'Mulcahy v. A. M. Florer
• Court: Minnesota Supreme Court

8 N.W. 166

27 Minn. 449

William O'Mulcahy v. A. M. Florer

Supreme Court of Minnesota

February 21, 1881

Plaintiff brought this action in the district court for Rice county, to recover possession of 160 acres of land in that county, for the rents and profits of the same, and for damages done by defendant to the said property.Defendant answering, denies plaintiff's ownership, and sets up title under a tax deed from the state on a sale for taxes of 1861, and also under a sale of the premises in 1875 for the tax of 1874, accompanied with peaceable possession since 1873; and, as a counterclaim, defendant sets up improvements made by him on the land in question since 1873, to the value of $ 1,288.50, and payment of taxes, with interest, to the amount of $ 1,040.74.

The case was tried before Buckham, J., and a jury, who returned a general verdict that plaintiff was entitled to recover possession of the land in controversy, and a special verdict finding that defendant had been in possession of said land before the commencement of this action more than three years after the tax sale in 1875; with a finding also as to the value of the improvements, and the amount of taxes paid and damages done by defendant.The court thereupon ordered judgment for plaintiff that he recover possession of the land in controversy, "provided that execution for possession shall not issue unless, within one year from the rendition of said verdict, the plaintiff shall pay into court for the defendant the sum of $ 1,109.83," the same being for improvements made and taxes paid by defendant.Judgment was entered accordingly, and both plaintiff and defendant appealed.

Judgment reversed, and new trial ordered.

Geo. N Baxter, for plaintiff.

Gordon E. Cole, for defendant.

OPINION

Gilfillan, C. J.

As the record does not show any right in plaintiff to recover at all, either the possession of the land or for damages done to it, if defendant's claim that the right of action to avoid the sale in 1875 was barred before the action was commenced be well founded, we will consider that question first.

That sale was had under the statute of 1875.Section 30, chapter 5, General Laws of that year, provides: "No sale shall be set aside or held invalid unless the party objecting to the same shall bring his action to set aside such certificate, or to test the validity of such sale, within five years from the date of the sale."The act of March 11, 1878, (Gen. St. 1878, c. 11,) provides, (section 85:)"No sale shall be set aside or held invalid, * * * unless the action in which the validity of the sale shall be called in question be brought, or the defence alleging its invalidity interposed, within three years after the date of the sale."The act of 1878 has no express repeal of the act of 1875 or any part of it.But defendant argues that, as the act of 1878 is a general revision of the former laws on the same subject, to wit, the assessment and collection of taxes, it operates, by implication, as a repeal of such former laws, including the sectionwe have quoted from the act of 1875, and that the limitation in the act of 1878 takes the place, even as to past sales, of that in the act of 1875.If the later act operated as a repeal of the limitation in the earlier as to sales under the earlier -- and we do not think it did -- yet the limitation of the later act would not apply to past sales, but would leave actions to avoid those sales without any limitation except as provided in the general law limiting the time for bringing actions; for the act of 1878 does not purport to regulate nor relate to past transactions.Its whole import is to provide rules for future assessments, future proceedings to enforce taxes, future judgments, future sales, and future certificates of sale, and none other.It does not assume to legislate for the past.Past proceedings of the kind must stand or fall, and be controlled, by the law in force when they were had.The limitation must, in the absence of terms to show a contrary intent, be held to apply only to the sales or certificates thus provided for in the act which fixes the limitation.The plaintiff's action was, therefore, not barred...