The plaintiff, claiming title to the lands in controversy, brings trespass for the value of pine timber cut and taken away by the defendants from the same during the winter of 1882. The defendant Jones is admitted to be the оwner of the land (320 acres) described in the complaint, unless the plaintiff has acquired title thereto by assignment from the purchaser upon an alleged sale thereof for delinquent taxes, in pursuance of the provisions of chapter 135, Laws 1881, “to enforce the payment of taxes which became delinquent in and prior to 1879.” At the trial the court ordered judgment for the defendants оn the ground of fatal jurisdictional defects apparent upon the record. The original tax-judgment book had been lost, and by consent the certified copy filed with the county auditor was admitted in evidence. The plaintiff afterwards applied for a new trial, which was granted upon the ground of surprise.
We think a proper case was made therefor.upon the affidavits on which the motion was made, by which it is made to appear that the copy of the judgment introduced in evidence was not in fact a correct transcript of the original as respects thе particular errors and omissions which the court deemed material at the trial, and which fact was not known or discovered by plaintiff or his counsel until subsequent to the trial. The clerk, who had beеn custodian of the lost record, and who appears to be a material witness for plaintiff on the subject, was sick and unable to be present at the trial, and the original record had been lost several months previous. We think the facts alleged — which must be taken as established for the purposes of the motion — that the record as filed with the auditor has, since the trial, been discovered not to be a correct copy of the original, and that plaintiff had no reason to doubt the accuracy of the official certificate^ and no apparent means at hand at the trial to detect its inaccuracy, and that he was in fact misled thereby, constitute a case of legal surprise. That plaintiff failed to ask for a continuance at the trial, under the circumstances, certainly shows no want of ordinary prudence. Nudd v. Home Ins. Co.,
The act of 1881 was not intended to provide for a sale and disposition of lands legally forfeited to and already the property of the state, but to enforce the payment of taxes which became delinquent in and prior to 1879, and which remained unpaid, and whether the sales or forfeitures previously made on account thereof were valid or not. The object of the statute was to enforce-their collection and payment by a sale which should divest the title of land-owners, and evidently proceeded upon the theory that owners had rights and interests remaining which it was intended to recognize and protect, notwithstanding the stringent provisions of the act. Knudson v. Curley,
It is true, the act in question contains no provisions in respect to
The provisions of this act, therefore, that the lands should be sold in distinct parcеls, were important to the land-owner as well as the state. A sale of several distinct parcels, en masse, would naturally tend to discourage competition in bidding, and, where they belong to different ownеrs, would greatly embarrass, if not defeat, a proper distribution of the surplus, if any. This requirement of the statute is a rule binding upon the auditor as to the manner in which the sale is to be made, and was doubtless intended for the benefit of the land-owner. Its construction is not affected by the fact that from the ■circumstances of particular cases its enforcement is deemed unimportant. Cooley on Taxation, *280.
The act in question provides, also, for the issuance of a certificate, to be substantially in the statute form given, and that “such certificate ■shall pass to the purchasеr the estate therein described. * * * If any purchaser shall purchase at said sale more than one piece or ■parcel of land, all the pieces or parcels so рurchased may be included in the same certificate.” This must be construed, however, as referring to separate sales to the same purchaser, as the statute provides. The certifiсate authorized by the act is also made prima facie evidence ■of title.
In the case at bar the plaintiff’s title and cause of action rest solely upon a certificate of the county auditor issued to his assignor uрon a delinquent tax sale purporting to have been made, under this act, on September 29,1881, and which is claimed to be sufficient prima facie ■evidence of title in fee to the lands embraced therein. This сertificate includes, however, not only the lands in controversy, alleged by defendant Jones to belong to him, but also a large number of other separate and distinct parcels, situated in diffеrent sections in a large number of different government townships in the county of Cass. It further appears upon the face of the certificate that these lands, con
A body of land composed of several government subdivisions or descriptions may in fact constitute but one tract or parcel. As defined in the general tax law, (Gen. St. 1878, c. 11, § 4,) “any contiguous, quantity of land in the possession of, owned by, or recorded as the property of the same claimant, person, or company,” may be сonsidered as constituting one lot, piece, or parcel, as used in the statute; and it is the general rule that where several government subdivisions, of land or village lots owned by the same pеrson adjoin, and are so connected together and occupied as to constitute one parcel of land in fact, they may ordinarily be treated as one tract or parcel for the purposes of assessment and sale. Hall v. Dodge,
Order reversed.