106 Minn. 386 | Minn. | 1909
This is an action, in form to quiet title, to determine the validity of a tax title. Pursuant to State v. Sage, 75 Minn. 448, 78 N. W. 14, judgment for taxes was entered against this tract of land and several others. Payment of the taxes oh the tract involved was inadvertently overlooked. Under the proviso of section 1591, G. S. 1894, under tax judgment, this tract was sold the latter part of April, 1899, a few days prior to the regular sale in the beginning of May of that year. August 20, 1907, a notice of expiration of time of redemption was issued by the county auditor, and the same was pretended to be served by the sheriff August 21. The trial court held the tax title valid. This appeal was taken from the judgment entered thereon in favor of the defendant. The controversy concerns the sufficiency of the notice of expiration of time of redemption. ■
1. Appellants contend that no evidence was adduced to show the presentation of the certificate by its holder to the county auditor under section 1654, G. S. 1894, and that this avoids the notice. Lawton v. Barker, 105 Minn. 102, 117 N. W. 249, decided this point adversely to plaintiff.
2. It is more strenuously argued that the notice does not state the amount required to redeem the land, exclusive of the costs to accrue upon notice. After stating that judgment had been entered against the land, and that the land had been sold, the notice runs: “For the sum of Forty nine Dollars and Forty seven Cents, that being the amount of taxes, penalties, interest, and costs due on said ■land” for the stated year. The notice then sets forth that the amount required to redeem said land from said sale is $49.47, with interest on said sum at 12 per cent, since the said 24th day of April, 1899, -exclusive of costs to accrue upon redemption.
In Midland Co. v. Eby, 89 Minn. 27, 93 N. W. 707, it was said that the least objectionable and most practicable method of stating the amount “is that which authorizes the auditor to state the total sum due on the day the notice is dated and issued, as the amount required to redeem. When redemption is made, interest may be added up to that time, and if, in the meantime, unpaid delinquent taxes have accrued, the amount thereof may be added to that stated in the notice. The statute itself enters into the transaction, and the land
We are of the opinion that, while this notice did not literally, it did substantially, conform to this rule. The expression “and with interest on said sum at 12 per cent.” is not rendered uncertain by the absence of the words “at the rate of” or “per annum.” Their omission could have misled no one. The initial date was fixed. The notice did not expressly state, as the statute requires, that interest should be computed “up to the day such redemption is made.” The redemptioner necessarily knew this. To have said so in the notice would have saved him no trouble and have added nothing to his information. The only question of any moment is whether the absence of the calculation up to the date of the notice avoids it. It is to be noted that in this case the proceedings involve no delinquent or unpaid taxes, or taxes previously paid by the certificate holder, which were sought to be tacked to the amount of sale on which the notice was to be calculated. It is not possible for the notice to state the exact amount to be paid at the time of actual redemption, because that time is not known and cannot be known until such time arrives. The most that can be done is to state the amount due at a certain time and the rate of interest, so that the certain calculation may be made at the time of redemption by the person entitled to redeem. This was done in this case. That is certain which can be made certain. Given the facts stated in this notice, in its own words, any grammar school child could have made the calculation.
3. That there was no proof that the auditor delivered the notice to the person applying therefor, as required by statute, does not invalidate the certificate. The reasoning on the- first point essentially necessitates this conclusion.
Í. That there was no proof that the person holding the tax certi-
5. The sufficiency of the return of the sheriff is the most doubtful question in the case. That return was as follows:
“State of Minnesota
County of Swift, ss.
“I, John McShane, sheriff of Swift county, do hereby certify that after diligent search I have been unable to find the within named Russell Sage within my county, and that on the 21st day of August, 1902, I served the within notice upon M. Rudnick and Joseph Blahoski, Rudnick was in possession of the N. W. J4) and Blahoski had possession of the S. W. %, of the land in said notice described, by handing to and leaving with each of them personally a true and correct copy of the within notice. John McShane,
“Dated August 21, 1902. Sheriff of Swift County.”
The statute provides that the sheriff’s return is prima facie evidence of the manner of- service, and that “such service shall be made in the manner prescribed for the service of summons in a civil action in the district court. If the person named in such notice cannot be found in the county and there be any person in the actual possession of the land in such notice described, the same shall in like manner be served upon him.” The return in this case was not that the jperson named in such notice cannot be found, but that “after diligent search I have been unable to find such person within my county.” It is plain that “my county” refers to Swift county, for the venue is laid in Swift county. The person certifying is described in the certificate as sheriff of Swift county, and signs it as sheriff of Swift county. The substance of the controversy is whether inability to find after diligent search is equivalent to “cannot be found.”
The return does not exclude the possible hypothesis that the person might be within the county, although the sheriff’s search had not resulted in finding him. But if,- after having made the identical search he made in this case, the sheriff had stated that the person “cannot be found,” his return would have been valid. The prac
The further criticisms on the return are, we think, without merit. It sufficiently appeared that Rudnick was M. Rudnick and that Blahoski was Joseph Blahoski. The objection that in one case it was said “was in possession,” and in the other “had possession,” is verbal. It appeared throughout the proceedings that the title was in Russell Sage., This excluded constructive possession. While undoubtedly the return would have been in better form if it had described these persons as in actual possession, the absence of the term “actual” was not material. It is also entirely evident that the description while inartistic, referred to the whole “of the land referred to in said notice.”
It follows that the judgment of the trial court must stand.
Affirmed.
