284 N.W. 63 | Minn. | 1939
As the facts are founded upon official records, there is no dispute respecting them. We adopt the findings of the court, absent as here any claim of inaccuracy.
Two actions were brought by the state against defendant to quiet title to two separate parcels of real estate in Aitkin county, one involving a 40-acre tract and the other an entire section. The two actions were consolidated for trial for all purposes and are so submitted here.
Defendant, a domestic corporation, was on May 1, 1927, the owner in fee simple of the premises and has ever since remained such owner unless its title has been divested by certain tax proceedings hereafter to be considered. Both tracts have been and still are vacant and unoccupied. The larger parcel is described as section 27, township 51, range 23; the 40-acre tract lies in section 17, same township. The section is subdivided into 16 forty-acre tracts as appears by government survey. For the year 1927, and each year thereafter, each such tract was assessed for taxation as a separate parcel. All taxes for 1927 and subsequent years remain unpaid. The taxes assessed for 1927 against 11 of the mentioned forties were at the rate of $16.52 each, four at $18.60 each, and one at $14.46, in all amounting to $270.58. The forty in section 17 was assessed for $15.57.
On February 1, 1929, the county auditor filed in the office of the clerk of court a list of delinquent taxes for 1927 upon real estate within his county. The forty in section 17 was separately described with amount of tax charges against it. The same is true *500 with respect to section 27 except that instead of describing each forty and the amount charged against each he included "all of section 27" and included the entire amount of taxes against it at $270.58.
Due notice pursuant to the statute (L. 1927, c. 119, § 3, 1 Mason Minn. St. 1927, § 2139-2) was published and proof thereof filed. On March 23, 1929, judgment was entered determining the amount of the 1927 taxes, penalties, and costs as follows: Against the forty in section 17, $18.19; all of said section 27, $311.47. Later, on May 13, 1929, pursuant to the judgment and after due notice given, the two parcels so included in the judgment were separately offered for sale at public auction. There being no private bidder, each parcel was sold to the state for the respective amounts of said judgments against them. No redemption has been made or attempted as to either parcel except as hereafter will be noted. In all respects the proceedings were regular and in compliance with the statutes except insofar as the respective subdivisions of section 27 are concerned. No subsequent tax judgment or sale has been made.
Pursuant to L. 1935, c. 278 (3 Mason Minn. St. 1938 Supp. §§ 2164-5 to 2164-18), the county auditor on July 1, 1935, issued and posted in his office a notice substantially in the form and of the substance prescribed in § 8(b) [§ 2164-12(b)] of that chapter except that it specified that the time for redemption of the lands therein described from the tax sale thereof would expire one year after service of notice and filing of proof thereof in his office. The notice set forth the parcels of land as hereinbefore described, that is to say, the forty in section 17 was described separately, the other parcel was described as "all of section 27." The auditor issued and caused to be published the notice conforming in form and substance with § 8(c) of the mentioned chapter. Proof of publication of the mentioned notice was made and filed. The auditor delivered to the sheriff a sufficient number of copies of the published notice for service upon persons in possession of any of the lands involved pursuant to said subd. (c); and the latter duly investigated and made service thereof in conformity with that statute. The lands *501 here involved were found to be vacant and unoccupied. Thereupon on April 17, 1937, the auditor executed the certificate provided for under § 8(f). The certificate was recorded in the office of the register of deeds of the county and thereafter filed in the auditor's office. All of these proceedings, except as herein otherwise indicated, "were in all respects in compliance with and pursuant to the statutes purporting to be applicable thereto, including said Chapter 278, Laws 1935."
On March 1, 1938, defendant tendered to the county auditor and treasurer, and to each of them, the amount of delinquent taxes with interest and penalties remaining unpaid against the two involved parcels as a redemption thereof from the said tax sale, including all accrued taxes up to and including the taxes for 1935, and demanded a receipt and certificate of redemption thereof. Each of the officials refused to accept the tender and refused to execute such receipt and certificate upon the ground that the time within which to redeem had expired. The court was of opinion, and as conclusions of law held, that "plaintiff is not, and the defendant is, the owner in fee simple," of the involved premises; that "plaintiff has no estate or interest in, nor any lien on, the same, or any part thereof, except its lien on each subdivision thereof for the amount of the taxes levied and extended thereon for the years 1927 to 1937, inclusive," together with interest and penalties thereto accruing; and, at plaintiff's election as to the 16 forties comprising section 27, that the judgment to be entered should include the right to have the premises sold by the sheriff to "satisfy such liens and one-sixteenth each of the costs of said sale, in the same manner and with like effect as in the case of sale of land on execution," relying upon authority granted by 1 Mason Minn. St. 1927, § 2185, and Blakeley v. L. M. Mann Land Co.
The court's memorandum exhaustively reviews our prior cases and bespeaks a most thorough search for the law applicable to the problems presented. We have found it most helpful.
1. It may be well first to restate the rule that: *502
"It is elementary that the power of taxation is inherent in sovereignty and that under our system of government it reposes in the legislature, except as it is limited by the state or the national constitution. In other words, the constitutional provisions are not a grant of, but a limitation upon, this power, and except insofar as thus limited it is exhaustive and embraces every conceivable subject of taxation." Reed v. Bjornson,
2. There is involved in the cases before us no constitutional question in respect to the manner or means to be employed in enforcing taxes except that of due process. In this state at least there is no constitutional right belonging to the citizen to redeem from tax sales, nor any right to any notice of expiration of redemption from such sale. We must therefore look to the statutes for such rights. 4 Cooley, Taxation (4 ed.) §§ 1559 and 1563; 6 Dunnell, Minn. Dig. (2 ed. 1934 Supp.) § 9405; State ex rel. Lee v. Schaack,
In the early history of the state there was no requirement of notice of expiration of redemption from a tax sale. Title passed without notice. The owner's title was forfeited. The requirement in respect to notice of expiration first came into our law by L. 1877, c. 6, § 37. That enactment did not, however, apply to the state, or to an assignee of the state after forfeiture. It applied only to assignees of the state prior to forfeiture. State ex rel. Davenport v. McDonald,
We are not now concerned with statutes requiring service of notice of expiration of redemption as to those who may have purchased property at tax sales or who may have acquired the state's interests by taking assignments of tax certificates.
A new theory, obviously intended to do away with the necessity of service of any notice of expiration of redemption by anyone, was adopted by L. 1927, c. 119. Under its provisions only taxes for the year 1926 and subsequent years were to be affected thereby; and all land thereafter sold at annual delinquent tax sales, whether to the state or an actual purchaser, upon expiration of five years from the date of sale, was to become the absolute property of the purchaser, whether such purchaser be the state or another. No right of redemption was granted, and no notice of expiration was to be given under its terms. However, in the notice of annual delinquent tax sale, provision was made for insertion of the following language:
"You are further notified that at the expiration of five years from the date of the tax judgment sale pursuant to such judgment, each parcel of land sold at such sale, and not redeemed, will become and be the absolute property of the purchaser or of the state, or of his or its assigns, without further right of redemption, and without any notice of expiration of the time to redeem the same." (L. 1927, c. 119, § 3, 1 Mason Minn. St. 1927, § 2139-2.)
It was under the provisions of this act that the 1927 taxes here involved were levied and the involved lands later sold. Appropriate *504
notice in conformity with the quoted statute was duly given; hence when this tax sale took place in 1929 there was no provision for the giving of any kind of notice of expiration. But by L. 1933, c. 366, 3 Mason Minn. St. 1938 Supp. §§ 2164-1, 2164-2, provision was made granting a right of redemption to the landowner from any sale for delinquent taxes for a period of 12 months "after proof of service, in the manner required by law," of a notice of expiration had been filed in the office of the county auditor. That act was sustained in State ex rel. Standard Inv. Co. v. Erickson,
Later L. 1935, c. 278, was enacted. By this act the mentioned c. 366 was repealed in part and provided for a new kind of notice of expiration to be given by the state when land was bid in by it at a tax sale and its interest had not been assigned to another. It is upon the validity of the kind of notice provided by this chapter that decision herein depends.
3. But before entering upon a discussion of the validity and applicability of that act to the factual situation here let us first dispose of defendant's claim "that several descriptions separately assessed and taxed as a group in one notice and judgment and sold as one tract renders the judgment void and prevents forfeiture to the state." Counsel's reference goes to the parcel described as "all of section 27." The court was of opinion that grouping of the 16 forties comprising section 27 in the delinquent list and the judgment later entered in conformity therewith resulted in a void sale for lack of jurisdiction; hence that the state "has only the lien for the unpaid taxes on the subdivisions of that section." The basis for the court's reasoning seems to be that in contemplation of law each parcel is to be assessed separately; that each such subdivision is a separate "parcel" or "tract"; that the list of delinquent taxes must correspond with the assessment books, which require a description of each parcel and the amount charged against it; that only upon the filing of such accurate list does the court acquire jurisdiction. The court concedes that there is no case found which "exactly reaches the point." In Moulton v. *505
Doran,
"The facts were these: Taxes had been levied upon the west half of a section of land as one tract, and the half section was sold as one tract to satisfy the taxes. The relator subsequently became the owner of the north-west quarter of the section through the foreclosure of a mortgage resting upon it at the time the taxes were levied. She claimed a right to redeem that quarter from the tax sales, and the purpose of the writ is to compel the respondent, as county auditor, to certify to the amount required to redeem that quarter. * * * There is no right of redemption from tax sale but such as the statute gives, and it gives the right to redeem only an entire tract sold, or an undivided estate or interest in it. It does not contemplate that a tract sold as one may, for the purpose of redemption, be divided into several tracts at the instance of the several owners."
There are several cases holding that where there is a sale of two or more contiguous parcels as one tract, absent evidence to the contrary, it will be presumed that the entire tract is so assessed, taxed, and placed in judgment. In other words, if the lots, parcels, or tracts should have been dealt with separately the landowner's only remedy was lost by not answering in the tax proceeding. Knight v. Valentine,
"Provided further, that no action, defense or application attacking the validity of the sale of any parcel at an annual delinquent tax sale or the validity of any subsequent delinquent taxes shall be entertained unless brought, interposed or made within five years from such sale."
There is no suggestion of prejudice resulting to the owner, nor any claim of unfair, unequal, or excessive assessment. At most there was an irregularity not however appearing upon the judgment roll. We find no omission of official duty going to the jurisdiction of the court. The rule is: "If the court acquires jurisdiction, the judgment is final and conclusive, except that it may always be shown that the taxes were paid prior to judgment, or that the land was exempt." Absent as here any claim of such prior, or any, payment of taxes, or that the land was exempt, we think the irregularity mentioned is one that should have been taken advantage of by answer or by direct attack. If the court has jurisdiction, the judgment "is conclusive as to the legality of the tax, the legality of the levy and assessment, and the amount due — in other words, it is conclusive of everything essential to the right to sell the land for the amount specified, barring the statutory exceptions as to payment and exemption." 6 Dunnell, Minn. Dig. (2 ed.) § 9355, and cases cited under notes. No one examining the judgment roll in this case could come to any other conclusion than that the tax list was regular on its face. Adequate notice having been given in *508 conformity with the statute, jurisdiction as to theres necessarily attached. Failure to answer precludes attack upon the judgment now. Cases dealing with collateral attack in such proceedings as we have here are found in 6 Dunnell, Minn. Dig. (2 ed.) § 9361. Among the many defects there listed as not ousting the court of jurisdiction these may be mentioned: "Error, irregularity or omission in the assessment or levy ofthe taxes, or in any other proceedings prior to filing thelist; * * * stating amount of taxes for several years in gross; error in name of owner; * * * treating two tracts as one; * * * error in amount of taxes; including taxes for certain years without authority; * * * mistake in copying list forpublication; mistake in publishing list," and many others. (Italics supplied.)
4. Defendant earnestly contends that when the legislature enacted L. 1933, c. 366, "it intended to give respondent a right to be served with the kind of notice prescribed by" 1 Mason Minn. St. 1927, § 2163, "or its substantial equivalent," and that thereby it was given "a vested right" to that kind of notice.
As has been seen, the 1927 act provided for an absolute forfeiture of the taxed property if the owner failed to meet the tax burdens charged against it within five years after sale. In 1933, when c. 366 was enacted, the financial situation was such that the legislature deemed it necessary to enact remedial legislation of many types to prevent general collapse of our social structure. We need not catalog the many acts passed having for their objective assistance to the people, especially the debtor classes. That chapter was enacted in furtherance of this purpose. Not only was notice of expiration of redemption restored as a prerequisite to forfeiture, but also a full year was given after service of notice and filing of proof thereof with the county auditor before the owner's title could be divested. Prior thereto, under then existing law, the owner's respite had been limited to 60 days. The act was sustained here in State ex rel. Standard Inv. Co. v. Erickson,
The grace period granted by the 1933 act was in the nature of a legislative gift founded upon motives of public policy. As such the rule is that "where a statute gives a right in its nature not vested, but remaining executory, if it does not become executed before a repeal of the law, it falls with it, and cannot thereafter be enforced." Bailey v. Mason,
Both enactments (L. 1933, c. 366, and L. 1935, c. 278) had for their objective the granting to the owner of tax-delinquent lands a further opportunity to protect his interests. Certainly no taxpayer can, within reason, claim otherwise. Each act extended redemption privileges as a matter of grace. When it comes to the enforcement of the tax lien, like any other remedy, the question is whether the new remedy afforded is a reasonable one. In State ex rel. Standard Inv. Co. v. Erickson,supra, we said (
5. The procedure in respect of notice of expiration of redemption and service thereof under the 1935 act, while different from that prescribed by 1 Mason Minn. St. 1927, § 2163, is adequate insofar as the contents of the notice itself and the service thereof upon the taxpayer are concerned. Its requirements when met, and they were here, are such as to leave no doubt that any delinquent owner, if not soundly asleep as to his own rights, or in wilful or negligent disregard of its language, would be advised thereby that unless compliance was met within the therein well defined limits his property would be lost. Nothing essential to due process is lacking. The notice gave the taxpayer definite directions to go to the office of his county auditor, where every fact concerning his taxes and their status as the sale affected his property might be *511 had. The posted list, there easily available, contained all the information required by the act and all that any taxpayer was interested in ascertaining. That this information would adequately inform him of the amount to be met and the time limit within which he must act in order to avoid loss of his property clearly appears. As such a taxpayer defendant was, necessarily, charged with notice of the law as it affected its property. The 1933 enactment as well as that of 1935 fully informed it of its rights, likewise its duties. It cannot consistently claim knowledge of the former act (L. 1933, c. 366) and ignorance of the latter (L. 1935, c. 278). And as there was full compliance by the officers representing the state with the requirements of §§ 7 and 8 of the act (3 Mason Minn. St. 1938 Supp. §§ 2164-11 and 2164-12), defendant's failure to redeem forfeited its title to the state.
If the 1935 legislature, instead of providing for notice of expiration and service thereof, had enacted a statute similar in its provisions to L. 1877, c. 6 (that act granted extension of redemption to three years from the date of tax sale but provided for absolute forfeiture of title if not paid within such period), it seems clear that such enactment would be a valid exercise of legislative power. By § 37 of that chapter, "every person holding a tax certificate" was required to cause notice of expiration of redemption to be served before the owner's title could be divested. In State ex rel. Western Land Assn. v. Smith,
"But," said the court (
The resulting decision was that as to "persons holding tax certificates," as assignees of the state, before the period of forfeiture had expired, the statute respecting notice applied, but it was held inapplicable to an assignee or grantee who acquired such interest after forfeiture, in which case, by the terms of the statute, the conveyance became absolute and without right of redemption. And the court further held that notice of expiration of redemption was not required to be served on behalf of the state, as the [
6. Another claim made by defendant as a reason for sustaining the result reached below is that the confession of judgment statute (Ex. Sess. L. 1935-1936, c. 72, as amended, 3 Mason Minn. St. 1938 Supp. §§ 2176-11 to 2176-16) and the repurchase statute (Ex. Sess. L. 1937, c. 88, Id. §§ 2176-26 to 2176-34) extended the taxpayer's right of redemption not only as to time for making such redemption but also extended "every available opportunity for the owner to repossess his land * * *." Inasmuch as it here clearly appears *513 that defendant has not complied or sought to comply with either of these acts, it would seem that it is not in position to make any claims under them. Furthermore, § 5 [§ 2176-15] of the former act provides that L. 1935, c. 278, "shall remain in full force and effect save and except wherein an applicant takes advantage of the provisions of this act." The cited c. 88 relates "to the repurchase of land after forfeiture to the state." Neither act, absent any effort on defendant's part to comply therewith, is of any help to it now.
7. The state directs our attention to L. 1935, c. 386, § 7, 3 Mason Minn. St. 1936 Supp. § 2139-21, which provides for the immediate cancellation of "all taxes and tax liens" immediately after forfeiture to the state. Of course defendant is not interested in this matter. We do not understand that the court considered this phase in view of its decision that these proceedings had failed to divest the owner of its rights in the property. The matter is one which can and undoubtedly will be corrected upon the going down of the remittitur.
The order is reversed with directions to amend the conclusions of law so as to conform with the views herein expressed.
So ordered.
