Nelson v. Cent. Land Co.

• Decision Date: 12 July 1886
• Parties: NELSON v CENTRAL LAND CO.
• Court: Minnesota Supreme Court

35 Minn. 408

29 N.W. 121

NELSONvCENTRAL LAND CO.

Supreme Court of Minnesota.

July 12, 1886.

Appeal from a judgment of the district court, Douglas county.

Chas. C. Willson, for appellant, Andrew Nelson.

A. C. Brown, for respondent, Central Land Co.

VANDERBURGH, J.

The plaintiff claims title under the foreclosure of a mortgage upon the lands in controversy. The defense is (a) satisfaction of the mortgage through redemption under an alleged prior foreclosure, and (b) title in fee acquired by the defendant under a tax sale.

1. The records disclose no evidence of such prior foreclosure, except the reference thereto in a redemption certificate appearing of record; but the defendant, in order to prove such foreclosure, introduced parol evidence of the contents of an alleged lost sheriff's certificate of sale, and insists that the prior legal foreclosure of the mortgage was presumptively established by such evidence, under Gen. Laws 1883, c. 112, which provides that the sheriff's certificate of sale, under a power contained in a mortgage, shall be prima facie evidence that all the requirements of law in that behalf have been duly complied with. Such secondary evidence was, however, we think, improperly admitted, against the objection of the plaintiff, because no proper foundation was laid for it. That is to say, due diligence was not exercised to secure the production of the original. It was traced to the possession of one Mower, the alleged agent and attorney of plaintiff, but no further. No further search was made, and no effort was made to procure his attendance, nor was it shown that it could not be found. We do not understand that plaintiff admitted its loss, but that he denied the fact of there ever having been any. Further, we think the evidence offered failed to show that the alleged certificate contained a description of the mortgage, or the date of the sale, or the time for redemption. In order to be prima facie evidence of a regular foreclosure, this certificate must be shown to be such as the statute requires in all matters of substance. Farnham v. Jones, 32 Minn. 13; S. C. 19 N. W. Rep. 83. There must, therefore, be a new trial, unless the defendant has established a paramount title under the tax sale.

2. The land was bid in for the state at the tax sale, September 19, 1881 A certificate of assignment to the defendant was executed by the county auditor on September 19, 1882, pursuant to section 89, c. 11, Gen. St. 1878, and, after the expiration of two years from the date of the sale, it was recorded. The defendant now relies on this certificate as evidence of title in fee, and insists-First, that section 37, c. 6, Laws 1877, requiring the service of notice of the time when redemption will expire, is inapplicable to certificates of assignment; and, second, that such certificate is in itself prima facie evidence of title at the end of two years from the date of sale, being in general the statutory...