54 Minn. 219 | Minn. | 1893
This is the ordinary statutory action to determine an adverse claim to real estate. The claim set up - in the answers is under a sale of the property under a judgment in favor of the defendant city against the land for an assessment for benefits, from laying out and opening an alley contiguous to the property. In his reply' the plaintiff assails both the judgment and the sale under it. The consideration of the case is much simplified from the-
It is further claimed that tbe order referred to did not vacate the first judgment, and therefore tbe court bad no jurisdiction to render tbe second. Assuming counsel’s premise to be true, tbe ■entry of a second judgment would be at most a mere irregularity.
Exception is taken to the validity of the provision of the city charter which provides for the recovery of twelve per cent, interest on assessments for benefits, remaining unpaid thirty days after publication of notice by the city treasurer that he has received the warrant for collection, while it provides for the payment of only seven per cent, interest to those to whom damages are awarded. It is claimed that in this way the city is permitted to collect from the property benefited an amount in excess of the cost of the improvement. There is nothing in this point. The damages awarded to those whose property is taken may be, and usually are, only a part of the cost of the improvement. The interest allowed on delinquent assessments for benefits may be intended in part to reimburse the city for the expense of enforcing their collection
The last point made is that the defendant bank, being a national bank, had no authority to purchase this certificate. It is well settled that no one but the government can raise this question,—Merchants’ Nat. Bank v. Hanson, 33 Minn. 40, (21 N. W. Rep. 849;) National Bank v. Matthews, 98 U. S. 621; National Bank v. Whitney, 103 U. S. 99; Fortier v. New Orleans Bank, 112 U. S. 451, (5 Sup. Ct. Rep. 234;) and, even if the rule were otherwise, the fact that the assignment to the bank might be void would not entitle plaintiff to any relief, for, if the title to the certificate is not in the bank, it must still be in its assignor, Bigelow.
Order affirmed.