Lovine v. Goodridge-Call Lumber Co.

130 Minn. 202 | Minn. | 1915

Taylor, C.

This is an action to determine adverse claims to a parcel of land located in Syndicate Addition No. 5 in Ramsey county. Defendant asserted title under an execution sale and also under a tax sale. Unless defendant acquired title under one or the other of these sales, plaintiff is conceded to be the owner of the land. The trial court excluded all evidence offered for the purpose of proving title under the execution sale, on the ground that the judgment upon which it was based was absolutely void; but admitted the evidence offered to prove title under the tax sale and-found that defendant was the owner of the land by virtue thereof and directed judgment accordingly. Plaintiff made a motion for a new trial; the motion was denied and he appealed.

1. The first question presented is whether the notice of expiration of the period of redemption was directed to the proper parties. The statute provides that the notice shall be directed “to the person in whose name such lands are assessed;” and further provides that, if “such lands are assessed in the name of the holder of the certificate, such notice shall be directed also to the .person in whose name title in fee of such land appears of record in the office of the register of deeds.” Section 2148, G. S. 1913. This notice was directed to “Goodridge-Call L’b’r. Co. and Goodridge-Call Lumber Co., of Hennepin Co., Minn.” The land was assessed in the name, “Goodridge-Call Lbr. Co.” Plaintiff insists that “Goodridge-Call Lbr. Co.” found in the assessment book is not the same name as “Goodridge-Call L’b’r. Co.” found in the notice, because of the two apostrophes in the “L’b’r.” of the latter name, and that consequently the notice was not directed to the person in whose name the- land was assessed. The letters “Lbr” followed by a period are obviously an abbreviation, and cannot be pronounced, without supplying omitted letters, and inserting apostrophes to show omission of letters made no material change in the name. The notice was directed to the party in whose name the land was assessed.

2. Defendant was the holder of the certificate and concedes that the land was assessed in its- name and that it was necessary for the notice to be directed “also to the person in whose name title in fee of such land appears of record in the office of the register of deeds.” It is admitted that Nils H. Lovine held the title to the land for many years and that his title was of record in the office of the register of deeds long prior to any of the transactions in controversy. Defendant contends that at the time of the issuance of the notice the title was of record in defendant’s name by virtue of the recording of a sheriff’s certificate executed pursuant to an execution sale under a judgment against Nils II. Lovine. The court excluded from evidence all'the records, including the sheriff’s certificate of sale, offered for the purpose of proving this judgment and the execution sale thereunder, on the ground that such records show upon their face that the judgment and sale thereunder were absolutely void. These records are not in evidence and there is no evidence tending to show in whose name the land stood of record except the admission that the deed conveying title to Lovine had been recorded on November 23, 1891. The notice was not directed to him, and consequently was not directed to the person in whose name the land stood of record as shown by the evidence.

3. The statute provides that legal notices shall be published only in a “qualified newspaper,” and that to be qualified to publish such notices the newspaper must, among other things, “be circulated in and near its place of publication to the extent of at least two hundred and forty copies regularly delivered to paying subscribers.” Sections 9412, 9413, G. S. 1913. The affidavit of publication of the notice of the expiration of the time for redemption states that the publisher publishes and delivers,, “at each regular issue thereof, more than 240 complete copies of such newspaper to paying subscribers;” but fails to show that 240 copies are “circulated in and near its place of publication.” Plaintiff contends that for this reason the affidavit fails to show that the newspaper was a newspaper in which such notices could be published and that publishing the notice therein was of no effect. It is uniformly held that' statutes authorizing service by publication are strictly construed, and that all the statutory prerequisites to the making of service in that manner must be complied with. Ullman v. Lion, 8 Minn. 338 (381); Golcher v. Brisbin, 20 Minn. 407 (453); Godfrey v. Valentine, 39 Minn. 336, 40 N. W. 163, 12 Am. St. 657. Under the above decisions the affidavit cannot be made more specific by intendment and clearly fails to show that the paper was a “qualified newspaper.” The affidavit also stated that the publisher had filed with the county auditor the affidavit required by section 9418, G. S. 1913, and defendant contends that this latter affidavit establishes the qualifications of the paper. This statute provides that “such affidavit, if it state the required facts, shall be prima facie evidence thereof and of such qualification;” but, as this affidavit was-not offered in evidence, we have no means of knowing whether it states “the required facts” necessary to make it prima facie evidence of “such qualification.” If it does and is offered in evidence that is sufficient, but no effect can be given it without showing that it states such facts.

For the reasons above stated the order appealed from is reversed.