State v. Minnesota Power & Light Co.

• Court: Minnesota Supreme Court
• Citation: State v. Minnesota Power & Light Co., 75 N.W.2d 386, 246 Minn. 235 (Minn. 1956)
• Decision Date: 27 January 1956
• Docket Number: 36513,36511,Nos. 36510,s. 36510
• Parties: STATE of Minnesota, Appellant, v. MINNESOTA POWER & LIGHT COMPANY et al., Defendants, Helen T. Hobart, Roger V. Whiteside, Toledo Investment Co., DuNord Land Co. et al., Respondents. STATE of Minnesota, Applicant, Respondent, v. MINNESOTA POWER & LIGHT COMPANY et al., Defendants, Helen T. Hobert et al., Appellants. STATE of Minnesota, Applicant, Respondent, v. MINNESOTA POWER & LIGHT COMPANY et al., Defendants, Roger V. Whiteside et al., Appellants.

Page 386

75 N.W.2d 386

246 Minn. 235

STATE of Minnesota, Appellant, v. MINNESOTA POWER & LIGHT COMPANY et al., Defendants, Helen T. Hobart, Roger V. Whiteside, Toledo Investment Co., DuNord Land Co. et al., Respondents.

STATE of Minnesota, Applicant, Respondent, v. MINNESOTA POWER & LIGHT COMPANY et al., Defendants, Helen T. Hobert et al., Appellants.

STATE of Minnesota, Applicant, Respondent, v. MINNESOTA POWER & LIGHT COMPANY et al., Defendants, Roger V. Whiteside et al., Appellants.

Nos. 36510, 36511, 36513.

Supreme Court of Minnesota.

Jan. 27, 1956.

Rehearing Denied March 23, 1956.

Syllabus by the Court.

1. A defective affidavit of publication of the notice and list of real estate remaining delinquent was filed. Held, that the court has jurisdiction to render judgment if in fact the notice and list were published according to law in the designated legal newspaper for such publication; and held further that a new sufficient affidavit filed in the original tax proceedings after the commencement of the trial of the instant action remedied any defect in the original and gave required proof.

2. In a Torrens proceeding to register title to the minerals and mineral rights in certain lands, where in a prior Torrens proceeding by a stranger to this action to register the title to the surface rights of said lands, the parties here were defendants, and where said defendants defaulted and the surface rights were registered in the applicant, the defendants here are not estopped to litigate as between themselves and the state the validity of the tax-forfeiture proceedings, although the identical tax-forfeiture proceedings are involved in both Torrens proceedings.

3. The court in a Torrens proceeding has no power to grant a defendant affirmative relief and has no power to determine claimed affirmative rights as between defendants so as to decree title in one or more of the defendants.

4. A judgment in favor of a plaintiff in an action against two or more defendants is not res judicata or conclusive of the rights and liabilities of the defendants inter se in a subsequent action between them, unless those rights were expressly put in issue in the first action by cross complaint or other adversary pleadings, or such issues were tried by consent and determined by the judgment in the first action.

5. In the posted notice of expiration of redemption are found certain irregularities, but as nothing is found misleading or prejudicial and every statutory requirement is found in the notice, the notice is not fatally defective.

6. After the recording of the original notices of expiration of time for redemption, in the office of the register of deeds, a new unauthorized final page was inserted and recorded, there being no evidence of the contents of the original final page, and after the commencement of the trial of this action, new corrective notices of expiration of redemption were filed and recorded by the county auditor, covering only the lands here involved, Held that the county auditor has authority to file and record new corrective notices of expiration of time for redemption covering only a part of the lands described in the original notice.

7. The posted notice of expiration of time for redemption named one John W. Thomas as the owner being assessed for taxes. The lands were officially assessed in the name of John M. Thomas. Held, that the misnomer was substantially prejudicial to the interests of the owner.

8. A notice of expiration of the time for redemption was not published in the newspaper designated by the county board as the official newspaper. Held, such failure was in violation of statute and substantially prejudicial to the owner.

9. M.S.A. § 284.09, the one-year statute of limitations, applies to all cases where land is claimed to have been forfeited for taxes, except cases where the alleged forfeiture is invalid because of jurisdictional defects in the proceedings and some other cases not here of importance. Held, that statute bars all defenses setting up defects in tax proceedings after one year after the filing of the notice of expiration of time for redemption which occur after the entry of judgments as not being jurisdictional defects.

10. A discrepancy between the date of the published notice and the date on the posted notice of expiration of time for redemption Held immaterial.

Miles Lord, Atty. Gen., Thomas J. Naylor, County Atty., Duluth, Minn., James G. Nye, Spec. Asst. Atty. Gen., for appellant.

McCabe, Gruber, Clure, Van Evera & Donovan, Duluth, for Helen T. Hobart, and others.

Lathers, Hoag & Edwards, Duluth, for Helen T. Hobart, and others.

Wheeler & Burns, Duluth, for Roger V. Whiteside, and others.

MAGNEY, Commissioner.

It is the claim of the State of Minnesota that certain lands in St. Louis County here involved were forfeited to it for the nonpayment of taxes. After the tax-forfeiture proceedings had been completed, the state conveyed the surface interest in and to the lands to the Huron Land Company but retained the minerals and mineral rights. The lands contain mineral deposits known as taconite. This action arises out of an application by the state to register the title under the Torrens law to the reserved minerals and mineral rights in said lands, claiming ownership of said minerals and mineral rights acquired through valid tax-forfeiture proceedings. Various individuals and corporations filed answers alleging that the taxforfeiture proceedings, under which the state claims title, were so defective as to be invalid and void and that they, and not the state, are the owners of the minerals and mineral rights involved. The court found in favor of the applicant as to certain of the lands and in favor of defendants as to others. Alternative motions for amended findings or for a new trial were made by applicant and by two groups of defendants, which motions were denied. Three appeals were filed, one by the state and the other two by defendants who deem themselves aggrieved.

As some of the questions raised do not apply to all the lands alike, for convenience they have been divided into six parcels. ¹ The state's claimed title to parcel 6 was not challenged and the trial court held that as to that parcel the title to the minerals and mineral rights therein was proper for registration. Some questions raised are common to all the parcels of land except parcel 6, and they will be considered first.

1. On January 28, 1928, the board of county commissioners by resolution designated the Hibbing Daily Tribune as the official newspaper of the county in which the notice and list of real estate remaining delinquent should be published. The delinquent tax list for taxes for the year 1926 was published in the said newspaper according to the statute. The affidavit of publication filed by the publisher contained this statement: 'Printed delinquent tax list hereto attached, cut from the columns of said newspaper, was inserted, printed and published in said newspaper for two weeks.' In fact, the delinquent tax list was not cut from the columns of the newspaper. Included in some of the 84 pages of the paper which contained the delinquent tax list is also printed other matter such as news and advertising. The affidavit of publication bears filing stamp: 'Filed in my office at --- o'clock --- m., March 5, 1928, J. P. Johnson, Clerk Dist Court, By B. G. Rilling, Deputy,' and the published list bears a similar stamp.

Defendants contend that the affidavit of publication is insufficient since it refers to the 'list hereto attached, cut from the columns of said newspaper,' when as a matter of fact no such list is found. They also contend that the publication is defective in that other printed matter is inserted on pages containing part of the published delinquent tax list; also, that the published delinquent tax list and the affidavit of publication are filed as separate documents without attachment of one to the other to identify the same and their relationship. M.S.A. § 279.20 provides 'The clerk shall attach together and file the list, notice, affidavit of publication, one copy of the newspaper and supplement, if any, in which the notice and list were published, * * *.'

They became a part of the judgment roll.

The court found that the delinquent tax list was published substantially as required by statute; that the manner of publishing the same was harmless and without prejudice to the owner; and that no claimed omission or failure was fatal to the jurisdiction in the tax-forfeiture proceedings. It also found that the claim of defendants, that the published delinquent tax list and the affidavit of publication thereof were filed as separate documents without attachment of one to the other to identify the same and their relationship, is not sustained by the evidence, and that the affidavit of publication and the list are identified in their reference to each other. The court also found that in part of the judgment roll, including delinquent tax list for taxes for 1926 and judgment of 1928, there is attached to the newspaper publication of delinquent tax list, and bound in book, duly attached, an affidavit of publication of the printer. On the 12th day of September 1949, on petition by the county auditor, followed by order of the court permitting the filing, a new affidavit of publication of the delinquent tax list was filed with the clerk of the district court setting out all the facts required by statute relative to publication.

The same situation is found relative to the publication of the delinquent tax list for the years 1927, 1929, and 1930 and the affidavits of publication covering same.

Section 279.14 provides:

'When the last publication shall have been made the notice shall be deemed to have been served and the court to have acquired full and complete jurisdiction * * *.'

Under this statute there is nothing to indicate that the filing of the affidavit of publication is...