Moulton v. Doran

10 Minn. 67 | Minn. | 1865

By the Court

—

Wilson, C. J.

— The plaintiff alleges that before the commencement of this action, he “was lawfully seized and possessed in his own right, in fee^of block numbered twenty-three in the town of Kasota, in the county of Le Sueur and State of Minnesota, composed and comprising ten distinct and separate lots, numbered from one to ten inclusive, which piece, parcel or tract of land had been surveyed and platted as aforesaid, and the plat thereof filed for record in the office of the Register of Deeds for said county during the year 1855.” It is inferable from the eonyplaint, and admitted by the plaiutiff’s counsel in the argument, that said block was originally assessed as one tract. In 1862 the plaintiff was the owner of the block, and there were then on it taxes for the year 1859 and previous years. In January, 1868, the taxes remaining unpaid, the block (as one tract,) was sold in pursuance of the provisions of Ohap. 4, of Laws of 1862. The plaintiff in his complaint alleges “that said sale is totally void and of none effect, for the reason that said block of land being subdivided, as hereinbefore set forth, into lots, was not offered and sold in separate parcels but as a whole tract,” and this action is brought to have said sale declared invalid for that reason. We think the facts alleged do not show the plaintiff entitled to the relief prayed for. The law under which the sale was made, provides (Sec. 6,) that an action to test or in any manner question the validity or regularity of the assessment can only be commenced prior to the sale, and (Sec. 1,) that an action to test the validity of the sale, shall be commenced within one year from the recording of the tax deed, thus clearly distinguishing between errors in the assessment and errors in the sale.. If the law is constitutional, which we will presume in this case, as it is not questioned, then the only errors which we can take into account here are those that are properly and peculiarly errors in the sale, as distinguished from those that are errors in the assessment or proceedings, antecedent to the notice of sale. The block having been originally assessed as a single tract, the County Treasurer had no authority to sell in lots. It was his duty to sell in the sub-divisions in which the property was assessed. He was not presumed to know or bound to enquire whether the block was sub-divided into lots. The act under which the sale was made, required that the premises should be sold for an amount not less than that for which they might have been redeemed, and inasmuch as the lots had not been assessed separately, it was not possible for him to ascertain the sum for which any single lot should be sold. There is no presumption either of law or fact, that the several lots in a block are equal in value. It is true that the law required that each tract or parcel be separately sold, but this when read by the light of the other provisions of the same act, can only be held to mean that each parcel, as assessed, shall be sold separately. In the sale of this block, therefore, we think there was no error, and no question being made as to the validity of the assessment, it is not for us here to pass upon it. It is true that an error in the assessment is fundamental, and ordinarily renders void all subsequent proceedings, but the fact must be found to exist before any conclusion can be drawn from it; and before the Court can find or pass upon a fact, it must be admitted or presented for adjudication. This view is decisive of the case, for it is clear that the Treasurer could not legally permit the plaintiff to redeem two of the lots without paying the tax on the whole block. But if we are not correct in this view, still we think the plaintiff could not recover. The rule' of pleading is well settled that facts must be alleged directly and positively, and not by way of rehearsal, argument, inference or reasoning, and if not thus alleged they are not admitted by a failure to traverse them. In the portions of the complaint above quoted, are found the only allegations that said block was legally sub-divided into lots at the time of the tax sale, while the fact that said block was sub-divided into lots may be inferred from the complaint, yet it is not alleged in a traversable form or positively alleged at all, and is therefore not admitted. The act of the legislature, under which the sale was made, was approved in time by the Governor. Stinson vs. Smith, 8 Minn., 366.

Order of Court below affirmed.

Berry, J. — Upon the ground last taken in the foregoing opinion, I agree with the conclusion arrived at.