31 Minn. 307 | Minn. | 1883
Lead Opinion
Actions to determine adverse claims to vacant and' unoccupied real estate, under Gen. St. 1878, c. 75, § 2. In each case-defendant in her answer denies plaintiff’s title, and alleges title in. herself under “a tax judgment sale,” made December 16, 187G, and alleges that no action had been brought within five years after the date of sale to set aside the certificate of sale, or to test the validity of such sale, and demands as affirmative-relief that she be adjudged the owner in fee of the premises, and that plaintiff be adjudged to have no right, title, or estate therein. The reply denies all the allegations of the answer, except that it admits that no action had been brought within five years to set aside any certificate of sale, or
It is elementary that, according to the common-law rule, this certificate would be inadmissible without proof of the authority of the auditor to make the sale. To sustain a conveyance executed by an .attorney under a power of attorney, by an executor under a will, by ■a sheriff under an execution, by a guardian or administrator under ..an order of court, by a commissioner under a decree of court, the power of attorney, the will, the judgment and execution, and the decree, must be first produced and put in evidence. If this certificate is prima facie evidence of any of the precedent acts necessary to clothe the auditor with authority to sell, it is only so by force of the .statute, and only to the extent it is expressly made so. But this
The defendant insists, however, that this rule is somehow changed, or inapplicable, from the fact that the so-called statute of limitations has run, the action not having been brought within five years after the sale. But this is not a question of the statute of limitations, but. of the competency of evidence. How can the fact that the statute-has run render that competent which before would have been incompetent ? The trouble is, the statute is not broad enough for defendant’s purposes. It needs a tax judgment behind it to set it in motion.. Until she proves a tax judgment authorizing a sale, she can never reach a point to invoke the application of the statute. See Dawson v. Helmes, 30 Minn. 107. Had she proved such a judgment, she-might be in position to successfully insist that plaintiff -was not entitled to have the sale or certificate set aside on account of an omission to comply with any of the requirements of law respecting the sale. But the case now stands precisely as if she had introduced no=. evidence, because she has produced no competent evidence.
Orders reversed, and new trial ordered in both actions.
Dissenting Opinion
dissenting. I concur in the result reached in-this case, on the ground that, although after it is proved that the sale • was in proceedings to enforce the payment of taxes, the certificate of ■ sale is prima facie evidence that, in the matters immediately respect