State ex rel. Kipp v. Nord

• Decision Date: 14 June 1898
• Docket Number: 11,058 [1] - (32) [2]
• Citation: 75 N.W. 760,73 Minn. 1
• Parties: STATE ex rel. SYLVESTER KIPP and Another v. J. P. NORD
• Court: Minnesota Supreme Court

75 N.W. 760

73 Minn. 1

STATE ex rel. SYLVESTER KIPP and Another v. J. P. NORD

Nos. 11,058 ^[1] - (32) ^[2]

Supreme Court of Minnesota

June 14, 1898

Appeal by relators from an order of the district court for Chisago county, Crosby, J., sustaining the demurrer of respondent county auditor to an alternative writ of mandamus and denying a peremptory writ. Reversed.

SYLLABUS

Notice of Redemption from Tax Sales under Laws 1893, c. 150 -- G.S 1894, § 1654.

The provisions of G.S. 1894, § 1654, are applicable to all sales of lands for delinquent taxes made in conformity with Laws 1893, c. 150 (G.S. 1894, p. 429, note), and the statutory notice of the time within which redemption from the sale is to be made must be given or served in order to terminate the right to redeem.

Notice of Redemption from Tax Sales under Laws 1893, c. 150 -- Sufficiency of Notice -- 90 Days instead of 60 Days.

The statute providing for the notice is mandatory, and the time when the right to redeem expires must be stated clearly and correctly in the notice. No distinction can be made between a notice which extends the time and one in which such time is reduced. A notice which fixed the time as 90 days, the statute prescribing 60, is defective and invalid.

S. & O Kipp, for appellants.

A statute providing for a notice of expiration of time for redemption from a tax sale is mandatory, and the statutory requirement that the notice shall state the time when the redemption period will expire is mandatory. Kenaston v. Great Northern Ry. Co., 59 Minn. 35; Peterson v. P.P. Mast & Co., 61 Minn. 119; Parker v. Branch, 42 Minn. 155; State v. Halden, 62 Minn. 246; Black, Tax Titles, § 334. A mistake in the notice as to the time the period of redemption will expire is fatal to the deed, whether the date named is earlier or later than the true one. 2 Blackwell, Tax Titles (5th Ed.) § 679; Cooley, Taxn. 537; Benefield v. Albert, 132 Ill. 665; Wisner v. Chamberlin, 117 Ill. 568, 579; Reed v. Lyon, 96 Cal. 501. If the notice was invalid when delivered for service, no subsequent act of the certificate holder or want of action by the landowner could validate it. Hill v. Timmermeyer, 36 Kan. 252; Parker v. Branch, supra.

P. H. Stolberg, for respondent.

Where the notice gives the full statutory time, and more, the owner will not be permitted to set aside the tax deed following such notice, without showing that he was misled by the notice and that he offered to redeem on or before the last day named in the notice. Hicks v. Nelson, 45 Kan. 47; Torrington v. Rickershauser, 41 Kan. 486.

OPINION

COLLINS, J.

General demurrer to the petition upon which was issued an alternative writ of mandamus directing defendant county auditor to permit the relators, who alleged themselves to be the fee-simple owners of certain tracts of land, to redeem the same from a tax sale made under and by virtue of the provisions of Laws 1893, c. 150. (See G.S. 1894, p. 429, note.) From the petition it appeared that the relators' right so to redeem was denied by the auditor on the ground that notice of the expiration of the period of redemption had been duly given and received, and the time to redeem had expired. The court below sustained the demurrer, and relators appeal.

1. It is argued by defendant that no notice to redeem lands sold under the provisions of the 1893 statute was necessary.

The scheme of the law under consideration was to enforce the collection of taxes which became delinquent in the several counties of this state in and prior to the year 1889, by a public sale in each county on October 12, 1893. The 1893 statute contains no express requirement that the general law (G.S. 1894, § 1654) shall be observed, and the notice therein prescribed shall be given or served as to the lands so to be sold, and there are several provisions in the act which, construed independently of one found in the latter part of section 5, might lead to the conclusion that the notice to redeem above referred to is not essential, and that it need not be given or served in order to confer a fee-simple title in the purchaser at the sale, subject simply to the right of the owner to redeem within one year. But it is provided in that part of the section just mentioned that the certificate issued to the purchaser, and which constitutes his muniment of title,

"May be recorded as deeds of real estate after ninety days have elapsed from the service of notice of redemption from tax sale as now provided by law,"

And some force and effect must be given to these words. They were inserted for the benefit of the landowner or redemptioner, and not merely as a wholly useless regulation in reference to the recording of certificates. We cannot ignore them, and this would be the inevitable result unless we hold that in this unsuitable place in the law, and in this awkward manner, the legislature expressed its intent to fasten upon the 1893 act the then existing general law in respect to notice to redeem, -- the notice "as now provided by law."

Of course, a direct provision, independent of all reference to the recording of certificates of sale, would have better served the purpose; but...