Sanborn v. Cooper
| Decision Date | 15 December 1883 |
| Citation | 17 N.W. 856,31 Minn. 307 |
| Parties | Walter H. Sanborn v. Lizzie Cooper. John B. Sanborn and another v. Lizzie Cooper |
| Court | Minnesota Supreme Court |
Actions to determine adverse claims to real estate. Appeals by plaintiffs from orders of the district court for Ramsey county refusing new trials, after trials before Simons, J without a jury. The cases are stated in the opinion.
Orders reversed, and new trial ordered in both actions.
John B. & W. H. Sanborn, for appellants.
That there was error in the ruling and decision of the lower court, is evident from the unvarying decisions of the courts upon this identical question. Hinman v. Pope, 1 Gilman, 131; Dukes v. Rowley, 24 Ill. 210, 221; Baily v. Doolittle, 24 Ill. 577; Doe v Himelick, 4 Blackf. 494; Parker v. Smith, 4 Blackf. 70; Scott v. Detroit Young Men's Society, 1 Doug. (Mich.) 119, 152; Latimer v. Lovett, 2 Doug. (Mich.) 204; Jackson v. Morse, 18 John. 441; Striker v. Kelly, 2 Denio, 323; Doughty v. Hope 3 Denio, 594; Tallman v. White, 2 N.Y. 66; Beekman v. Bigham, 5 N.Y. 366; Varick v. Tallman, 2 Barb. 113; Bridge v. Bracken, 3 Pin. (Wis.) 73.
A. R. Capehart, for respondent.
Respondent was not required by Laws 1875, c. 5, § 30, to prove a tax judgment, and that she claims by virtue of a sale and the statute of limitations. All respondent has to do, is to show a sale of the premises and a lapse of five years from the date thereof without suit brought to set it aside, in order to set the statute in motion. "A tax deed not void upon its face is, of itself, prima facie evidence of everything necessary to its own validity, and is prima facie evidence of title in the grantee mentioned in the tax deed." Bowman v. Cockrill, 6 Kan. 311; Hobson v. Dutton, 9 Kan. 477; Stahl v. Roost, 34 Iowa 475; Leavitt v. Watson, 37 Iowa 93; Pillow v. Roberts, 13 How. 472; Lamb v. Gillett, 6 McLean, 365. If plaintiff relied upon any defect in the proceedings or in the jurisdiction, it was his duty to aver and prove such defects.
OPINION
Actions to determine adverse claims to vacant and unoccupied real estate, under Gen. St. 1878, c. 75, § 2. In each case defendant in her answer denies plaintiff's title, and alleges title in herself under "a tax judgment sale," made December 16, 1876, and alleges that no action had been brought within five years after the date of sale to set aside the certificate of sale, or to test the validity of such sale, and demands as affirmative relief that she be adjudged the owner in fee of the premises, and that plaintiff be adjudged to have no right, title, or estate therein. The reply denies all the allegations of the answer, except that it admits that no action had been brought within five years to set aside any certificate of sale, or to test the validity of any pretended tax sale. On the trial plaintiff proved a perfect chain of title in himself from the United States. Defendant offered in evidence a certificate of sale, purporting to have been made pursuant to a tax judgment by the county auditor to one Lord, on the 16th of December, 1876, to the admission of which plaintiff objected, on the ground that no evidence had been offered of any tax judgment, or of any authority to the auditor to make the sale. The court overruled the objections and admitted the certificate. The only other evidence offered or introduced by defendant was a deed from Lord to herself, and that the premises had not been redeemed from the alleged tax sale. On this state of facts, the court found as conclusions of law that defendant was the owner in fee-simple of the premises, and that plaintiff had no interest or title therein, and ordered judgment accordingly. The ground upon which the decision was put is that, no action having been brought to set aside or test the validity of the tax sale within five years, the title of the purchaser at such sale became absolute and cannot now be questioned. The sale was made under the general tax law of 1874, as amended by Laws 1875, c. 5, § 30, the important provision of which is as follows:
It is elementary that, according to the common-law rule, this certificate would be inadmissible without proof of the authority of the auditor to make the sale. To sustain a conveyance executed by an attorney under a power of attorney by an executor under a will, by a sheriff under an execution, by a guardian or administrator under an order of court, by a commissioner under a decree of court, the power of attorney, the will, the judgment and execution, and the decree, must be first produced and put in evidence. If this certificate is prima facie evidence of any of the precedent acts necessary to clothe the auditor with authority to sell, it is only so by force of the statute, and only to the extent it is expressly made so. But this statute only makes the certificate of sale prima facie evidence "that all the requirements of the law in respect to the sale" have been complied with, but not of the precedent acts necessary to authorize the auditor to make the sale. It is not made prima facie evidence of the tax judgment, which is the source of his authority to sell. This would have to be first proved aliunde, as before. The extent of the effect of the statute is merely to make the certificate prima facie evidence of the regularity of the proceedings connected with the sale itself, such as the giving of notice of the time and place of sale, the fact of sale, and that it was conducted in the manner required by law, and the like. That this is the extent to which it goes is, we...
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