121 Minn. 301 | Minn. | 1913
This action was brought to determine adverse claims to the real property described in the complaint. Defendant Foster alone answered. After trial before the court without a jury, judgment was ordered and entered as hereinafter stated, and defendant Foster appealed.
The facts are as follows: Plaintiff based his alleged ownership of the land upon two tax certificates, one issued in 1902 in proceedings to enforce the payment of delinquent taxes for the year 1900,. and one issued in 1904, in proceedings to enforce the payment of delinquent taxes for the year 1902. Defendant Foster is the holder of the patent title to the land, and also holds a certificate of tax sale issued in 1905, in proceedings to enforce the payment of delinquent, taxes for the year 1903. The trial court found as a fact that the “two tax titles under which plaintiff claims to be the owner of the land * * * are each of them invalid for reasons other than that said land was not subject to taxation, or that the taxes upon which
The statute upon the subject (section 956, E. L. 1905) provides
The purpose of the law in requiring writs and other documents issued by public officers to be attested with the official seal of the issuing officer is to authenticate the document as an official writing and as evidence of the genuineness of the signature of the officer. A majority of the courts hold that the failure to attach the official seal, where the law requires its use, invalidates the instrument. 32 Cyc. 441; Choate v. Spencer, 13 Mont. 127, 32 Pac. 651, 20 L.R.A. 424, and cases cited in the note, 40 Am. St. 425. The rule is perhaps not so exacting as to private writings. The private seal has been abolished in this state, but the'use of the official seal is still required. Chapter 45, § 2652, R. L. 1905.
In harmony with the rule stated, it has frequently been held that the failure of the issuing officer to attach his official seal to a tax deed renders the deed void and of no effect. 37 Cyc. 141; Gue v. Jones, 25 Neb. 634, 638, 41 N. W. 555; Pile v. McBratney, 15 Ill. 314; Reed v. Morse, 51 Kan. 141, 32 Pac. 900; Watson v. Jones, 85 Pa. St. 117. The opposite view was taken in Stockland v. Hall, 45 Wash. 197, 88 Pac. 123. The presence of an official seal would seem to be just as essential to the validity of a notice of expiration of redemption as to a tax deed, and if necessary to the latter is equally so as to the former. In fact the failure of an officer to affix his official seal to documents issued by him, which are required by law to be attested with such seal, has often been held by this court as fatal. De Graw v. King, 28 Minn. 118, 9 N. W. 636; 2 Notes to Minn. Cases, 188, where other decisions are cited to the same effect.
We hold, therefore, that the failure to affix the auditor’s official
“No notice of the expiration of * * * redemption upon any certificate of tax judgment sale issued to an actual purchaser, or upon any state assignment certificate issued under the provisions of section 1601, of the General Statutes of 1894, shall issue or be served under the provisions of section 1654 of the General Statutes of 1894, or any other law in force at the time of the passage of this act, after the expiration of six years from the date of the tax judgment sale described in any such certificate; nor shall any such certificate be recorded in the office of any register of deeds after the expiration of seven years from the date of such sale. All such certificates upon which such notice of expiration of redemption shall not be issued and served, and such certificate recorded in the office of the proper register of deeds within the times limited by this act, shall be void and of no force or effect for any purpose whatever.”
Though the question is not entirely free from doubt, we do not think this statute should be given the effect contended for by defendant. There is no question but that a failure of compliance with the
It has always been the policy of this state, as that policy has found expression in statutory enactments on the subject, to protect purchasers of property at delinquent tax sales, and to provide them a method for reimbursement where their title has failed.' The rights granted such purchasers prior to the year 1902 were (1) to perfect title by terminating the right of redemption; and (2) if for any reason the title failed, the right of refundment from the public treasury. These two remedies had been in existence for many years prior to the year stated, and afforded complete protection to the tax purchaser. The right of refundment was abused, as stated by Justice Jaggard in Jenks v. Henningsen, 102 Minn. 352, 354, 113 N. W. 903, and it was abolished by chapter 2, p. 1, Laws 1902, except in certain instances, and the tax lien of the state substituted in its place. The several sections of that act are embodied in R. L. 1905, to which reference will hereafter be made. The purpose of the legislature in so abolishing the right of refundment was to inaugurate a new system for the enforcement of delinquent taxes, and a different method of
The purpose of these several statutes is obvious. They were intended for the protection, not only of the state, but the purchasers at tax sales as well. The tax lien was made perpetual, only to be discharged by a payment of the tax in full. The lien is transferred to the holder of the invalid tax title, and all rights granted the state pass to the certificate holder. He may enforce them, either in the manner pointed out by the statute, or by any other appropriate judicial remedy in foreclosure of the lien. The rights thus granted are important to the tax purchaser, and in the main the inducement to the purchase at the tax sale, and before declaring them forfeited there should be some clear legislative expression to that effect. The certificates here in question were issued prior to the passage of chapter 271, and though it was competent for the legislature subsequently to prescribe a limitation within which title thereunder may be perfected (State v. Krahmer, 105 Minn. 422, 117 N. W. 780, 21 L.R.A.(N.S.) 157), the act of 1905 contains no language indieating an intention to modify, or to in any manner interfere with, the effect and operation of prior statutes vesting in the certificate
We think the rule inapplicable. There is nothing in chapter 271 so manifestly inconsistent with the numerous prior statutory provisions upon the subject to justify its application. Neither does the later statute attempt to cover the entire subject. It treats only of the tax certificate, and of the time and manner of terminating the right of redemption thereunder. In effect it is a mere statute of limitations in one respect, and in another respect a recording act. If the legislature had intended a failure to comply with its provisions to result in the extinguishment of the tax lien, undoubtedly it would have so expressly declared. And since no such declaration is found in the act of 1905, and the rule of repeal by implication does not apply, it must be held that the tax lien survives. We find no basis, from the statute, for holding that, if an insufficient notice to redeem be given and the certificate be recorded, the right to a lien exists in favor of the certificate holder. The statute does not so read. Its language is clear that if a notice is not given, and this necessarily means a valid notice, the certificate' is void. Byers v. Minnesota Commercial Loan Co. 118 Minn. 266, 136 N. W. 880. The question here considered was not involved in Foster v. Clifford, 110 Minn. 79, 124 N. W. 632. In that case, however, notice of the expiration of the time of redemption was given, was defective, and the holder was held entitled to a lien.
The Byers case, supra, relied upon by defendant is not in point. That case involved a tax certificate issued prior to the enactment of chapter 2, Laws 1902, and at a time when the holder had no right to a lien upon the adjudication of the invalidity of his title. The alternative remedy when the certificate in that case was issued was
The result is that the certificate holder has, under our present statutes, two remedies for the protection of rights acquired by his tax purchase: (1) To perfect title by the service of a notice to redeem; and (2) when the title for any reason fails, to enforce the tax lien. The interests of the owner of the land are in no way prejudiced by this result. While the lien continues indefinitely, until the tax is paid, thus incumbering the land and clouding the title,, the owner may at any time relieve the situation by paying the tax-He can in no way be misled, for the records disclose the facts, and! by consulting them he may learn of the existing unpaid lien.
Judgment affirmed.