53 Minn. 309 | Minn. | 1893
Appeal from an order overruling a general demurrer to the complaint. The main question is whether plaintiff is entitled, under 1878 C. S. ch. 11, § 97, as amended by Laws 1881, ch. 10, to have returned to him out of the county treasury the amounts paid for certain lands at tax sales held in the years 1866, 1867, and 1868. Tax certificates were duly issued at such sales, upon which plaintiff obtained tax deeds on and prior to August 11, 1871. A judgment adjudging and decreeing these tax sales, the certificates, and the deeds null and void was duly entered November 24, 1880. Plaintiff made no demand upon the county auditor for a warrant on the county treasurer, according to the complaint, until June 30, 1890, —nearly ten years after the judgment had been declared void and set aside; therefore much more than six years had elapsed between the day on which judgment was entered against the plaintiff and the day on which demand was made on the county auditor for a warrant on the treasurer, and it is the position of counsel for defendant auditor that the cause of action was barred by the statute of limitations. 1878 G. S. ch. 66, §§ 3, 6. This depends upon when the cause of action accrued. If at the time of the entry of judgment, in 1880, the position before referred to is unassailable, and the order appealed from must be reversed. Upon the other hand, if the cause of action did not accrue until a demand was made, the statute was not set in motion until then, and the complaint stated a good cause of action. In Corbin v. Morrow, 46 Minn. 522, (49 N. W. Rep. 201,) it was held that, in order to bring himself within the provisions of the statute first above cited, it is incumbent upon one claiming a right to have the amount he had paid out returned to him out of the county treasury to show by his complaint that he has made such demand, accompanied by proper evidence of his right to make it. As the action, said the court, must be based on a breach of duty by the auditor, the complaint must show affirmatively that it was the auditor’s duty to issue the warrant. Respondent’s counsel 'rely upon this case, arguing that
In Brown v. Brown, 28 Minn. 501, (11 N. W. Rep. 64,) this court held that where a loan of money was made upon the condition that the debt therefor should become due and payable when demand was made, and not before, the statute of limitations began to run from the date of the demand, and not from the date of the loan. In Branch v. Dawson, 33 Minn. 399, (23 N. W. Rep. 552,) the rule was established that the right to sue a bank upon a general deposit does not accrue, nor does the statute of limitations upon it begin to run, until a demand of payment, unless such demand is in some way dispensed with. In each of these cases care was taken to place the conclusion upon the ground that it was the intention of the parties to a contract to make a request for payment a condition precedent to the liability to pay the money, and therefore, as no action would lie until the condition was performed, the statute of limitations commenced to run when demand was made, and not before. Neither of these cases is authority in respondent’s behalf, for there is no resemblance between a purchaser at a tax sale and a bank depositor. The liability of a banker to his depositor grows out of contract, while in the case of a purchaser at a tax sale, where the sale has been adjudged void, the duty of the auditor to issue a warrant and the liability of the county to refund arise by virtue of the statute. The relations between the parties are not at all similar, being contractual in the one case and statutory in the other.
In Litchfield v. McDonald, 35 Minn. 167, (28 N. W. Rep. 191,) it was held that the leave to be obtained (1878 G. S. ch. 78, §§ 1-3) from a district court or judge, before bringing action upon an official bond, was no part of an aggrieved person’s cause of action, and hence that the time of obtaining such leave cut no figure in the application of a statute of limitations; the statute commenced to run from the time the wrong complained of was perpetrated, and not from the time leave to sue was obtained. The cause of action, if there was one, accrued independently of and prior to the application for leave, and was the very basis on which the application rested. So it was with the demand in controversy here, and the language used in the Litchfield Case when considering the claim that the
The statute of limitations commenced to run against plaintiff’s claim upon the county on the day judgment was entered against him.
Order reversed.
(Opinion published 55 N. W. Rep. 128.)
