44 Minn. 490 | Minn. | 1890
This was an action of ejectment, in which the plaintiff claimed the premises under the patent title, while defendant claimed them under two tax-titles, — one under Laws 1875, c. 7, and the other under Laws 1881, e. 135. The cause was rightly decided
The terms used in this statute would seem to indicate that the legislature had in mind a judicial proceeding resulting in a judgment of the court determining heirship or succession to real estate. But, if this is the construction to be placed upon the act, it is clearly unconstitutional. It does not contemplate or provide for taking possession or custody of the estate of the deceased for administration or for any other purpose; neither does it provide for or require the giving of •notice of any kind to parties interested in the estate, or giving them any opportunity or right of appearing and being heard in the matter. Under the provisions of this act, a party, without notice to any oné, could simply present his ex parte affidavit and petition to the probate judge, who might forthwith, and without hearing any other evidence, unless in his arbitrary discretion he saw fit to do so, enter a “decree'’ adjudging that a party had died intestate, and that the petitioner as his heir was the owner of the real estate described in the pétition. Such proceedings are in no sense judicial, and are without binding force on any one. This is not “due process of law,” which requires notice and hearing before judgment. Bardwell v. Collins, supra, p. 97. Another construction which may be put upon the act, and the only one upon which it can be possibly held valid, is that the legislature merely intended to establish a rule of evidence, by which, upon the introduction of a “decree” of this kind, the burden would be cast upon the opposite party to disprove the facts found therein. The provision that such decrees “shall be taken and held * * * prima
Plaintiff, however, earnestly contends that defendant’s objections on the trial to the introduction of this evidence were not sufficiently specific to suggest or raise this point. But it would have made no difference if he had not objected at all, for, when admitted, the evidence proved nothing. After the repeal of the statute, the law ascribed to these decrees no probative value whatever under any circumstances. It is not at all analogous to a case where secondary evidence is introduced without laying the foundation for it, or where a writing or record is offered without due proof of its execution or authenticity, or where expert evidence is admitted without proof of the competency of the witness. There was, therefore, an entire failure of proof of title in plaintiff, and for that reason if no other judgment should have gone against him.
The same result, however, is reached from a consideration of defendant’s showing of title in himself, at least under the tax-sale of 1875, which, of course, would be paramount to and extinguish the patent title. Several objections are raised by plaintiff to the proceedings under which this sale was made, the most substantial of which is the alleged insufficiency of the proof of publication of the tax-list in the Minneapolis Weekly Tribune, the newspaper designated by resolution of the board of county commissioners. The affidavit is attached to a copy of the Minneapolis Weekly Tribune, to which it refers as containing, and which does in fact contain, the printed tax-list, and states that the affiant was, during all the time mentioned in the
Order affirmed.