290 N.W. 298 | Minn. | 1940
Title to and right of possession of certain real estate in the city of Virginia are to be determined. Plaintiff in her representative capacities is conceded to be the owner unless her title has been divested or encumbered by reason of certain tax proceedings now to be related. Taxes duly levied and assessed for the year 1926 were not paid. As a consequence a tax judgment was entered March 24, 1928. At the tax sale held on May 14, that year, a certificate of tax sale was issued to defendants' assignor. Subsequent taxes have been paid by defendants or their assignor. The court found that "the net amount of such taxes, penalties, interest and costs so paid by defendants" or their assignor was $1,280.68, "computed to December 13, 1938." (Defendants' claim is $1,684.95, but that is not presently important.) No one questions the legality of the tax, entry of judgment, or tax sale.
By L. 1927, c. 119, §§ 2, 3 (1 Mason Minn. St. 1927, §§ 2139-1 and 2139-2), applicable to taxes for 1926 and subsequent years, a new theory was adopted so as to do away with the necessity of *204 service of any notice of expiration of redemption by anyone. Thereby the taxed real estate —
"hereafter duly sold at the annual delinquent tax sale, * * * shall at the expiration of five years from the date of such sale become and be the absolute property of the purchaser or of the state, or of his or its assigns, without the doing of any act or thing whatsoever, without any right of redemption, and no notice of expiration of the time to redeem from any such sale shall be required."
The law as to taxes levied prior to 1926 required service of notice of expiration of redemption before title of the owner could be divested. 1 Mason Minn. St. 1927, § 2163. Under the provisions of 1 Mason Minn. St. 1927, §§ 2169 and 2170, it was also required that notice of expiration and service thereof must be had within six years, and that the tax certificate showing service of notice of expiration and that the redemption period had expired should be recorded in the office of the register of deeds of the county in which the involved premises were located within seven years from the date of sale. If the certificate holder failed to comply with these requirements his title and interest in the property was wholly lost. Such "failure [as to notice and recording] * * * shall operate to extinguish the lien of said purchaser" not only as to taxes represented by the certificate but also "of all subsequent taxes paid under such certificate."
The 1927 act remained operative and in force until the 1933 legislative session, when L. 1933, c. 366 (3 Mason Minn. St. 1938 Supp. §§ 2164-1 and 2164-2), was enacted. It provides that:
"Right of redemption from any sale for delinquent taxes shall continue for a period of twelve months after proof of service, in the manner required by law, of a notice of expiration of the time within which redemption can be made, has been filed in the office of the county auditor * * *." (Italics supplied.) (Section 2 repeals all inconsistent acts, and § 3 provides that it shall take effect from and after its passage. It was approved April 21, 1933.) *205
It will thus be seen that the 1933 law came into effect less than a month before the time when under the 1927 act defendants' title would have become "absolute," and this "without the doing of any act or thing whatsoever" on the part of anyone. On March 9, 1934, the opinion in State ex rel. Standard Inv. Co. v. Erickson,
On May 29, 1935, defendants secured possession of the property upon their claim of ownership and have since received certain rentals amounting to $609.20. Upon these facts the court concluded that the notice of expiration was not properly served and that defendants' claim as to title failed; also, that because of inadequate service of notice and the certificate not having been recorded within the period fixed by 1 Mason Minn. St. 1927, §§ 2169, 2170, that all taxes paid by defendants under their certificate of sale, including the certificate itself and the record thereof, should be cancelled and annulled, and that plaintiff should have and recover from defendants the rental income received by them while in possession, with interest, the whole amounting to $689.70, plus costs and disbursements $45.04. Judgment was entered accordingly. This appeal followed.
The result reached seems unduly harsh and unreasonable. Defendants' good faith in acquiring the tax certificate by assignment *206 from the original tax purchaser cannot be questioned. There is no finding otherwise.
1. Our decisions have gone a long way to protect the landowner against tax forfeitures. But our statutes and cases decided thereunder do not aim at forfeiture of the tax certificate holder's interest even if he is unsuccessful in getting absolute title under it. Hence it is that while in tax title proceedings "it is elementary that * * * to divest title to real estate there must be strict compliance with the statute," Warroad Co-op. Creamery Co. v. Hoyez,
2. Equally well established is the rule that: "The validity of a tax certificate and the rights of the holder are to be determined by the laws in force at the time the certificate is acquired." Klasen v. Thompson,
3. As we have seen, the service of notice of expiration of redemption was entirely eliminated from the 1927 statute (1 Mason Minn. St. 1927, §§ 2139-1 and 2129-2). As there was to be no notice of expiration, of course there could remain no six or seven-year limitation within which such notice should be issued and served and the certificate recorded. This must necessarily be so as the title was to become vested immediately upon expiration of five years from the date of sale "without the doing of any act or thing whatsoever." The purchaser's title was then to be "absolute." The prior statutes as to such notice and recording were wholly inapplicable as to 1926 and subsequent taxes. If §§ 2169 and 2170 are now in force as to sales in 1928 and subsequent years it must be because these were brought back into being and *207 made operative by L. 1933, c. 366 (3 Mason Minn. St. 1938 Supp. §§ 2164-1, 2164-2). Under that act a new right of redemption was given the owner by requiring service of notice of expiration, "in the manner required by law," and giving to the tax-delinquent owner 12 months after such service and filing thereof with the auditor within which to redeem his property. The kind of notice, the manner in which it was to be served, and upon whom is found in § 2163. That section by clear implication of the 1933 act was pointed out as the law to be followed and employed. It was the only applicable statute on the subject. Nothing in the 1933 act by its terms or by fair implication can be said to be, or even imply, a reënactment of §§ 2169 and 2170 in respect to the time when such notice should be served or the certificate recorded. All that was to be done by the certificate holder was to see that notice was issued, served, and filed with the auditor.
It therefore seems entirely logical to hold that L. 1927, c. 119, being the later law and occupying the entire field as to taxes levied in 1926 and subsequent years, took the place of and abrogated "prior contrary laws," if such there were, and if "there is conflict, the later law must prevail." Klasen v. Thompson,
The 1933 act was passed for the obvious purpose of giving the landowner more time within which to save his property. Notice of expiration was deemed to be of aid to him, not only to afford him additional time within which to redeem, but also that thereby he would be reminded of what was impending. In State ex rel. Standard Inv. Co. v. Erickson,
Referring to other sections of the tax statute, we find some interesting provisions. Thus, under § 2207 the tax judgment is made a perpetual lien upon the land covered thereby "until such judgment and taxes are paid in full." Under § 2209 taxes may be paid by "any person who has a lien, by mortgage or otherwise, upon any land upon which the taxes have not been paid." He is given an additional lien for the amount of the tax so paid by him, and this is collectible with and as a part of the amount secured by his original lien. Under § 2210 a tenant or occupant may pay taxes upon property occupied by him, and by filing notice in the office of the register of deeds may enforce the same as a lien against the land, with interest, or "he may retain the same from any rent due or accruing from him to such owner." And so we find that our cases, prior to Hutchinson v. Child,
In Hutchinson v. Child,
It is interesting to note that the relator in the Erickson case,
Plaintiff and those whom she represents have paid no taxes over a period of many years. Defendants and their assignor have by purchase of the taxes performed the duty owed the state by the owners. Yet she now insists that she may keep the land without reimbursing defendants. Courts should not aid her to accomplish this purpose unless she "can point to a valid act of the legislature which amends or repeals the provisions of the general statutes and which is clearly applicable to tax sales made before the change in the law. None of the acts to which [s]he directs our attention go so far as that." Blakeley v. L. M. Mann Land Co.
We conclude that 1 Mason Minn. St. 1927, §§ 2169, 2170, are not applicable to tax sales under the 1927 act; hence that the rule in the Child case,
4. We think the court was right in concluding that service of the notice of expiration of redemption was insufficient because *210
some of the tenants occupying the premises were not served. Casserly v. Morrow,
We conclude that the court rightly held plaintiff's title good and that she is entitled to possession. But her title and estate are subject to the rights of defendants under their tax certificate and taxes subsequently paid by them. Against this, plaintiff should be credited with the net rental income received by defendants during the time of their possession.
The judgment is reversed and cause remanded with directions to ascertain the amount of defendants' tax lien but crediting against the same the net amount received by defendants as rentals; that the judgment to be entered grant to defendants the right to enforce their tax lien, when so ascertained, against the premises.
So ordered. *211