135 Minn. 186 | Minn. | 1916
Action to determine adverse claim to real estate. Plaintiff’s source of title is a tax proceeding. The defendant Mary E. Stryker holds the government title. Plaintiff’s title was sustained and defendant appeals.
But few of the many legal questions raised by the appeal need be determined. Plaintiff’s asserted title originates in a tax judgment entered March 22, 1906, against the land in controversy for the 1904 delinquent taxes, and a sale had thereunder May 14, 1906, when it was bid in for the state. On August 20, 1910, the county auditor executed a certificate, assigning the interest acquired by the state under the sale to Goodrich and Oliphant, who on August 25, 1910, caused a notice of redemption to be issued and served. Thereafter they conveyed to plaintiff, who in 1911 went into possession of the land.
No valid tax title can be acquired in this state, unless the fee owner’s title has first been eliminated by the service of such a notice of redemption as the statute prescribes. The proof in this case shows that the notice
But he contends that, having taken and held possession for more than three years, the tax title is unassailable. The contention is based upon the effect to be given to G. S. 1913, § 2133, which, so far as here material, reads: “No sale shall be set aside or held invalid unless the action in. which the validity of the sale is called in question be brought, or the defense alleging its invalidity be interposed, within three years after expiration of the time for redemption.” The revision of 1905 (R. L. 1905, § 941), made a material change in this statute. In prior statutes the limitation was fixed to begin to run from the date of sale. There can be no such fact as an expiration of redemption until 60 days after a valid notice has been served upon the party in whose name the land stands assessed. We think the statute is so plain upon this question that there is no room for argument. It is not applicable to this case. The redemption has not expired, and the statute has not started to run. It is not necessary to determine whether plaintiff, not having pleaded the statute, can now invoke it. There is nothing to the claim that defendant had notice through her attorney of the sale and of the notice of redemption. Even if she had, it did not dispense with the statutory notice. Nor is there anything by way of laches to estop defendant from asserting her title. We must thereiore hold that plaintiff’s title has failed, and that defendant is the owner subject to existing tax liens.
This is an action wherein the court, when the tax title fails, must determine the amount which the party asserting such title is entitled to enforce as a lien against the land by virtue of the amount paid the state for the assignment and for subsequent taxes. G. S. 1913, §§ 2165, 2168. The taxes involved in the tax judgment and subsequent taxes constitute a perpetual lien against the land, § 2171, G. S. 1913: and it should be enforced in this action, Foster v. Clifford, 110 Minn. 79, 124 N. W. 632; Downing v. Lucy, 121 Minn. 301, 141 N. W. 183, Ann. Cas. 1914C, 755;
The county auditor’s certificate assigned the interest of the state to Goodrich and Oliphant. The proof identified Goodrich as R. J. Goodrich, and Oliphant as D. L. Oliphant. Under the decision of Foster v. Johnson, 39 Minn. 378, 40 N. W. 255, appellant’s point that the certificate transferred nothing from the state is not well taken. We think the tax lien has passed to plaintiff.
There need be no new trial upon the issue of title. Upon the undisputed facts defendant is the owner of the fee, subject to the tax lien held by plaintiff and it should be so found. The cause is remanded with direction to amend the findings accordingly and grant a new trial only for the purpose of determining the amount of lien which plaintiff is entitled to enforce and grant judgment accordingly.
