Williams v. Lash

By the Court. Atwatee, J. The title of the Defendant in Error to the premises in question depends upon the” validity of the sale and purchase by the board of commissioners of Ramsey county, under the judgment obtained in favor of that county. It becomes therefore necessary to determine whether the county had the power and capacity to purchase under that sale, and whether it obtained any title to the premises by virtue thereof. A county is a body politic, having a corporate capacity only for particular, specified ends and purposes, and is termed by legal writers a quasi corporation, that is, having corporate attributes sub modo. 2 Kent’s Com., 314. And the same author states, that the modern doctrine is to consider corporations as having such powers as are specifically granted by the act of incorporation, or as are necessary for the purpose of carrying into effect the powers expressly granted, and as not having any others. (2 id., 350.) This principle has been established and affirmed by numerous and uniform decisions in the United States and state courts, so that at this day it stands unquestioned, and the only difficulty that can arise with re — 505 — gard to it, is to determine its applicability to the particular case in hand. And first, as to the powers of counties as expressly granted, defined and limited by statute at the time of the purchase of this real estate by the county of Ramsey, February 19th, 1858. See. 251, Comp. Stat., p. 109, provides that “ each county shall continue to be a body politic and corporate for the following purposes, to wit: To sue and be sued; to purchase and hold for the public use of the county, lands lying within its own limits, and any personal estate ; to make all necessary contracts, and to do all other necessary acts in relation to the property and concerns of the county.’' Some other provisions with regard to the power of county commissioners, having no bearing upon the question under discussion, need not here be cited. It is to this enumeration of the powers of counties, that we must look for the authority claimed by the county, or on its behalf, to purchase the lands in question. The second paragraph is the only one conferring express power upon the county to purchase and hold real estate. That limits the power of the county to the purchase of such lands only, as are for the public use of the county, and lying within its own limits. It will be observed by reference to the act of February 28th, 1860, (Sess. Laws, 1860, p. 131) that an additional grant of power was made, authorizing the county to purchase lands sold for taxes. The “ public use” by the county, mentioned in the statute, must mean that actual use, occupation and possession of real estate, rendered necessary for the proper discharge of the administrative or other functions of the county, through its appropriate officers. Section 254 of the same act shows for what purposes the county may need the use of real estate, to wit, in the erection of court houses, jails, fire-proof offices, and all other necessary buildings for the use of the county. If the use be extended beyond these specified and obvious purposes, it is difficult to see what limitation can be placed upon the power of the county to purchase, so as to give the language any consistent signification. That the real estate purchased by the county under this — 506 — judgment, was not purchased for the public use of the county within the meaning of the statute above cited, is clearly manifest from the papers before this court. It consisted of a large number of city lots, separate from each other, and was evidently bought in by the county, as any individual or natural person, Plaintiff, would purchase real estate upon a judgment creating a lien in his favor. Indeed, there is no pretence either in the pleadings, briefs, or any of the papers presented to this court, that this purchase was made by virtue of the second paragraph of the section above quoted. It is urged by the Defendant in Error that as the constitution imposes no restrictions upon the power of a county to hold property, it is conceived that there can be no' particular limit in this regard, and certainly none excepting such as may be implied from the purposes for which it was created. But this doctrine would entirely reverse the principle laid down by the elementary writers and modern decisions, and instead of considering corporations ás having such powers only as are specifically granted by the act of incorporation, or as are necessary for carrying into effect the powers expressly granted, we should hold that they had all such powers as are not withheld. This doctrne can neither be maintained on principle or authority. There being then no express power granted by statute for the county to purchase and hold these lands, it becomes necessary to inquire whether such power is to be implied, as necessary for the purpose of carrying into effect the powers expressly granted. It is conceived that the only clause in the statute granting express power to which this claim of implied power could by any possibility be applicable, is that authorizing the county “tomake all necessary contracts, and to do all other necessary acts in relation to the property and concerns of the county.” In the first place it is to be observed that taking the statute together in endeavoring to ascertain the extent of power conferred, the authority to make contracts and do all other necessary acts in relation to the property of the county, must refer to other contracts and acts than those relating to the purchase and holding of real estate. For since it is manifest that there must be many contracts and acts rendered necessary on the — 507 — part of the county, aside from that of the purchase of real estate, it is reasonable and natural to refer this language to these, rather than that one which is specially provided for in direct terms. Pull effect and meaning can be given to the language used, without holding that it has any reference to the purchase of real estate by the county, and the power thereby granted is separate and distinct from that granted by the second paragraph, and equally necessary for the proper administration of county affairs. But again, the express grant of power to purchase and hold real estate for the public use of the county, is equivalent to an absolute prohibition to purchase and hold for any other purpose. In the case Tucker vs. St. Clement's Church, 3 Sand., 242, the Court remarks, that “ when the powers of a corporation are not defined and restricted by its charter,, or by any general law, its capacity to take, hold, and dispose of real estate is precisely the same as that oí a natural person, arid that such a corporation may hold' lands as a trustee, can ne longer* be considered a doubtful question. But when the purposes for which a corporation may take and hold real estate are expressed and enumerated in its charter, the maxim, “ expresslo unius est exclusio alUrius,” is invariably applied, and the enumeration is construed as a prohibition of all that it does not embrace. Such a corporation can hold lands for the purposes specified, and none other, and hence, every question that can arise as to its legal capacity must be determined solely by a reference to the words of its charter. This principle of construction was adopted by our Supreme Court in the early case of Jackson vs. Hartwell, 18 Johns., 422; has since been followed in cases too numerous to be quoted, and is now placed beyond the reach of judicial discretion by'an express provision of the revised statutes. (1 R. S., 602, secs. 1 a/nd 2.) ~We may also remark that the same has been done in this state by the act of August 13, 1858. Sec. 2 of art. 14 of that act (Comp. Stat., p. 193) provides that no county under this organization shall possess or exercise any corporate powers, except such as are enumerated under this act, or shall be specially given by law, or shall be necessary to the exercise of the powers so enumerated or given. This section was not repealed by the subsequent act of 1860, above referred to. — 508 — In the case of Jackson vs. Hartwell, it was held that the supervisors of a county are a corporation, with special powers and for special purposes only; and that it was very questionable whether, prior to the act of April 8th, 1801, they were competent to take a grant of land. And that then they had no capacity to take and hold lands as supervisors for any other use or purpose than that of the county which they represented. In other words, that they had no authority in this behalf except such as was -expresly granted by statute. In this case, as well as those of 1 Cow., 260, 13 Mass., 193, and others which might be cited, the limited powers of these quasi corporations are expressly noted as distinguished from those of ordinary corporations aggregate, and the idea is prominently and repeatedly presented, that their limited powers can only be coextensive with the duties imposed upon them by statute; and that they are restrained from a general use of the authority which belongs to these metaphysical persons by the common law. But even granting that the same rules of construction are to apply to these political bodies in determining the extent of their powers, as to ordinary corporations aggregate, we fail to find any authority sanctioning the idea that the power hero Claimed may be legitimately inferred or deduced from the language of the statute which authorizes the county or commissioners “ to do all other necessary acts in relation to the property and concerns of the county.” Upon this point the case of Beaty vs. The Lessee of Knowler, & Pet., 161, is closely anala-gous. A company was incorporated by the legislature of Ohio, by the name of “ The proprietors of the half million of acres of land lying south of lake Erie, called the sufferers’ land.” The main question in the case was, whether the company under their charter had power to levy a tax upon the members, to pay the tax to the state assessed upon their lands. It was conceded that no express power was given by the charter for this purpose, but a clause in the charter authorized the directors to levy a tax “to defray all necessary expenses of the said company in purchasing and extinguishing the Indian claims of title, surveying, locating, making partition of the land; and to defray all other necessary expenses of said company.” And also a section providing that — 509 — the “ directors shall have power to do whatever shall appear to them to be necessary and proper to be done for the well ordering of the interest of the proprietors, not contrary to the laws of the state.” These clauses certainly grant as ample powers for the purpose of levying the tax as the language of our statute for the purpose of purchasing and holding real estate by the county. With regard to the first clause, the Court say, that the words “ all unnecessary expenses of the company,” cannot be so construed as to enlarge the power to tax, which is given for specific purposes. And with regard to the other section it is. said that “ the provision in the tenth section, that the directors shall have power to do whatever shall appear to them to be necessary and proper to be done for the well or. dering of the interest of the proprietors, not contrary to the laws of this State,” was not intended to give unlimited power, but the exercise of a discretion within the scope of the authority conferred.” If the words of this section are not to be restricted by the other provisions of the statute, but to be considered according to their literal import, they would vest in the directors a power over the land, only limited by their discretion. They could dispose of the land and vest the proceeds in any manner which they might suppose would advance the interest of the proprietors. It is only necessary to state this consequence to show the danger of such a construction. This reasoning is entirely applicable to the case at bar. If the county may purchase and hold these lands it may lease them, improve them, use them, in short, in any manner that shall seem most conducive to the interests of the county. And the same reasoning would authorize the county to purchase real estate at other sales than those under judgment in its favor. But wai\mg this view, as a county may often have judgments in its favor which are a lien upon lands, if this power be conceded, it may become a large landholder and dealer in real estate. We cannot for a moment entertain the idea that any such power was intended to be vested in these corporations, and, as above remarked, the bare statement of the consequences which must result from a concession of the — 510 — power here claimed, is sufficient to show the danger of such a construction. We think the views above expressed conclusive upon this question, and yet there are one or two other considerations not without weight in this connection. The land was pur. chased by the Commissioners of Ramsey county; and turning from the statute defining the powers of counties to that con. ferring authority upon the County Commissioners (Rev. Stat., p- 59), we find not only an entire lack of authority in the’ statute prescribing their powers and duties, to make this pur. chase, but it is expressly provided that they shall have no other powers except such as are or may be given by law. Sub. 6, See. 13, id. p. 59. This view of the lack of power in counties to purchase and hold lands as here contended for, we think is continued by reference to subsequent action of the Legislature upon the same subject. In.1860 (Sess. Laws 1860, p. 130,) the Legislature made an additional grant of power to counties, authorizing them to purchase and hold lands sold for taxes as provided by law. It is reasonable to infer from this, that the Legislature did not consider the counties had such power previous to the passage of this act. And yet it would seem that there could be much less doubt as to the power of the county to hold such lands without special and express provision therefor, than in such a case as the one at bar, since, by sec. †† Comp. Stat., p. 240, the Register of Deeds was authorized to' bid off such lands for the county. And if the clause of the statute under which this power is claimed, authorized the purchase in this ease, most certainly would it on a sale for taxes a part of the proceeds of which at least, and in some cases the whole, would belong to the county. The fact that this judgment was obtained upon the official bond of the treasurer of the county, does not place it in anymore favorable position than would be any other j udgment in favor of the county. The application of the principles above stated cannot be affected by the nature of the claim before the same has been put in judgment, nor by the fact that the purchase was made upon a judgment in favor of the county. The difficulty is in the absolute lack of power in the — 511 — county to purchase or hold real estate upon any judgment or otherwise, except as expressly authorized by law. If, as matter of fact, this real estate upon which this judgment was a lien, could not have been sold at all, or at least not without great sacrifice, unless the county became the purchaser, and there was no other means of collecting the judgment, it would be an argument proper to be addressed to the Legislature for power to make such purchase; though it is believed that a legislative grant of power of this kind, merely to meet the temporary exigencies of the times, unless carefully guarded and limited, would be of dangerous tendency. An argument of this kind, however, cannot properly be addressed to the Court, and even if it could in certain cases, in this, no foundation whatever has been laid for it in the pleadings, nor is there any pretence that the interests of the county would be sacrificed or prejudiced, unless the county had purchased the property. The lots covered by the mortgage of the Plaintiff in Erroi^ were sold under a judgment in favor of ore Hart, which was a prior lien to the mortgage. The Plaintiff, through her agent, tendered the amount bid on the mortgaged property, with in. terest, within the prescribed time for redemption, to the Deputy Sheriff of Pamsey county, (who was then in charge of the sheriff’s office,) for'the purpose of redeeming the premises from said sale. The referee has found, as a conclusion of law, that the attempt by Plaintiff to redeem from said sale was invalid, because at that time she had no interest in these premises sold, and because she did not produce to the officer, and file in the Sheriff’s office, with her notice, a copy of the assignment of the said JohnMayall to her, verified by a subscribing witness thereto.” Whether the referee has erred in this conclusion, must depend upon the proper construction of the act applying to redemptions, under judicial sales, since the first ground upon which the referee held the Plaintiff not entitled to redeem, is disposed of by the views expressed upon the right of the county to purchase. With regard to the point here raised, the statute provides, among other things, (Comp. Stat, sec, 118, p. 573,) that a re-demp.tioner must produce to the officer, &c., “ a copy of any — 512 — assignment necessary to establish bis claim, verified by the affidavit of himself or of a subscribing witness thereto.” The referee haB found that the agent for the Plaintiff at the time of such redemption produced to said deputy sheriff, and filed in said sheriff’s office, (among other papers^) “ a copy of the assignment of the said mortgage, by said Samuel to' said John Mayall, and an affidavit of said Samuel Mayall, stating that he saw John Mayall execute an assignment of said mortgage to Plaintiff, and she was then the owner and holder thereof.” It is not pretended but that all the other steps required by statute (with one exception, noted hereafter,) were properly taken by Plaintiff to perfect her redemption. The deputy refused to receive the money, which was paid into court upon the commencement of this suit. Hart was the purchaser of these lots upon the sale under his judgment, and previous to the redemption, or attempted redemption by the Plaintiff, had sold his certificate of sale (so far as these lots were con cerned,) to the Defendant in Error. That the statute was not fully and literally complied with in this proceeding of the Plaintiff to redeem the premises is manifest; but was the defect assigned by the referee fatal to the right of the Plaintiff as a redemptioner Tinder the statute? We think not, and that a consideration of the object of the-statute, and the decisions upon those of similar nature, wiN make it apparent that so rigid a construction ought not w obtain as would oust the Plaintiff of her rights under her mortgage. That the policy of the law at this day is to encourage and facilitate the redemption of property upon judgment and mortgage sales, will scarcely be questioned, both from motives of humanity to the debtor, as well as to promote the interests of creditors. Property will ordinarily bring more for the benefit of both parties, with this right attached than without. And the uniform tendency of late legislation is to extend rather than restrict this right. With reference to the proceedings required by statute on the part of the redemptioner, the Legislature seems to have had a twofold object in view. First, to furnish evidence to — 513 — the officer or purchaser that the party proposing to redeem has such right under the statute; and, second, to provide the evidence whereby a second or other redemptioner may know the amount to be paid to a previous one. It is only with regard to the first of these objects that the present case need be considered. And it is evident, from the nature of the case,, that the evidence required by statute is not and could not be conclusive of the fact to be shown, or such as to amount to absolute certainty ; but such ordinary and reasonable degree of certainty as men act upon in the usual affairs of life. The Plaintiff in offering to redeem, omitted (for what reason does not appear,) one stop required by statute, to show the officer her chain of title, in the form required, but, we think, supplied it in substance. The affidavit of Samuel Mayall stated that he saw John Mayall execute an assignment of this mortgage to Plaintiff, and that she was then the owner and holder thereof. If either of these facts were untrue, the deponent would have rendered himself liable to the penalties of perjury. The fact of the assignment thus appeared by reasonable evidence, and the further fact intimately connect" ed therewith, and equally important, (though not required by statute) that tbe Plaintiff was then the owner and bolder of tbe mortgage. It is doubtless true that the statute allowing a creditor tore" deem lands sold under execution, was, by some of tbe earlier decisions, strictly construed as to the evidence to be produced by the creditor showing his right to redeem. But this doctrine has been repudiated by all the later decisions to which we have had access, and the more reasonable one now obtains? that, the statute being remedial in its nature, should be construed liberally, as in favor of the debtor and his redeeming creditors. In The People vs. Ransom, 2 Hill, 51, which was .a case of redemption under a statute, similar if not identical with ours, the Court say, speaking of this evidence, “ the documents are mere instruments of business — preliminary proofs — the whole of which are intended and can operate as nothing more than a check to the imposition of fictitious claims, and as furnishing the means to detect fraud.” The .statute there required the redeeming creditor to show by affi — 514 — davit the amount due him at the time of claiming his right of redemption. In that case the affidavit was dated some six weeks previous, and was held good, the Court strongly intimating that even had it been made immediately after the sale it would have been a sufficient compliance with the statute» and remarking, that “ to execute the statute, we must allow some latitude, and take a statement which amounts to ordinary certainty; — that the object is reasonable information.” And, further, that “ in any view which can be taken of the affidavit, it must be admitted that the relator has not literally jcomplied with the statute. And its effect (the affidavit) must in a great measure depend on the inclination of the judicial mind to construe the act liberally in favor of the debtor and his redeeming creditors, or so strictly as to demand an exact compliance rather with its words than its substance and spirit.” So in Exparte Newell, 4 Hill, 608, the redeeming creditor presented what purported to be copies of two assignments of a judgment under .which he claimed the right to redeem, but the affidavit annexed did not show that they were copies as required by statute. And yet the affidavit was held sufficient» the Court remarking, that <l the party swears positively that he is the assignee and owner of the judgment, and if it had «lot been duly assigned, he may be convicted of perjury.” And it was also held in the same case, that where the statute required a copy of the assignment to be produced, the production of the original would be a sufficient compliance with the statute. The statute requires the copy of the assignment to be verified by the redeeming creditor, or of a subscribing witness thereto. In this case the fact of the assignment is not proved by a subscribing witness, or, rather, it does not appear that Samuel Mayall was a subscribing witness of the assignment. But the facts which he states make him a subscribing witness within the meaning of the statute. In The People vs. Fleming, 4 Denio, 137, it was held that where there is a sub" scribing witness the affidavit of one acting in the matter as agent of the creditor, swearing directly to such agency, and that he saw the instrument executed and delivered, is — 515 — sufficient, being equivalent to the affidavit of the creditor himself. A further instance of the libez’al construction given to this statute is found iu Aylesworth vs. Brown, 10 Barb., 167, in which it was held that an assignment of a judgment is not rendered invalid bj the omission of the middle letter of the assignor’s name in the title of the suit and in the signature • nor by the omission of the name of one of the attorneys for the Plaintiff in the judgment; nor by the stating the amount of the judgment to be “ $75 besides costs,” while the amount mentioned in the docket is $120 damages and costs ; nor because the assignment states that the judgment was rendered in.1844, whereas it was docketed on the 13th of January, 1845. And the remark of Bronson, J., in 4 Denio, is approved, stating that “ the statute should receive such a reasonable construction as is best calculated to carry into effect the end which the Legislature had in view. That end was to make the land bring its utmost value, by means of an auction among the creditors, preserving to each one his right, according to the seniority of his lien.” Although none of these cases show the same omission or variance from the statute that appears in the case under consideration, yet it is believed they fully justify the construction of the statute as above stated ; and that though the letter of the statute was not complied with by the Plaintiff in proceeding to redeem, its spirit and intent was. And we are satisfied that both as a general principle, and as applied to this particular case, far less injustice would result to allow a redemption upon the facts here disclosed than to hold the creditor precluded from it. But there is another view of this matter, which we think must also dispose of this objection to the redemption upon a different ground. The Defendant in Error is the only party claiming or pretending to have any interest in the property who objects to the foreclosure which this action was brought to effect. He was purchaser of this property upon the foreclosure of his mortgage against John H. Bandall, and as such purchaser, here claims as redemptioner upon this prior judgment in favor of Hart. That is, he stands practically and — 516 — substantially in that position, although instead of acquiring or seeking to acquire his interest through the forms of redemption, he became the purchaser of the sheriff’s certificate to Hart, so far as this property is concerned. But he alleges in his answer that he “ made the purchase and procured the assignment and conveyance of the aforesaid sheriff’s certificate of .sale, so far as it affected the said last named real estate,from the said Hart, and of all the right, title, interest and estate of said Hart, in and to the said real estate as aforesaid, and procured and received the aforesaid (certificate) for the purpose of securing, assuring, and confirming his aford-said right, title, interest and estate which this defendant previously thereto had in the' said real estate as aforesaid.” The only interest which John H. Randall had in this property, so far as the case shows, was the interest or right of John May all, acquired by him through a redemption of this property from the sale upon the judgment in favor of Ramsey county. As that sale was invalid, and the purchaser took nothing thereby, Mayall, of course, could take nothing by his redemption, and, consequently, had no interest or estate in the property to convey to Randall, nor had Randall any to grant by bis mortgage to Lash. Nor could Lash acquire any rights under his judgment of foreclosure not conveyed by his mortgage, at least so far as the Plaintiff is concerned, since her mortgage is a prior lien on the property, nor does it appear that she was made a party to the suit in the foreclosure by Lash. It is not perceived, therefore, that the Defendant in Errol’ is in a position to object to this redemption by the Plaintiff, and aside from his objections, none others are raised. This view also disposes of the objection that the money was not tendered to the proper person. Aside from this, however I think the objection not well taken. The statute requires the money to be paid to the purchaser or officer who made the sale. The sheriff, of course, made the sale on the Hart judgment though whether he did so in person or by deputy does not appear, though it seems that the deputy sheriff executed the certificate to the Defendant in Error. The referee finds that — 517 — tbe tendel’ was made to Boss "Wilkinson, tbe deputy sheriff of Bamsey county, wbo was at that time in charge of the sheriff’s office. The deputy sheriff, by statute, is “ empowered to do and perform all the duties devolving on the sheriff of the county.” The officer who makes the sale is the sheriff, whether he acts in person or by deputy, and in requiring the .payment to be made to the officer, rather than the person who Uaade the sale, the intention, doubtless, was to give both the purchaser and redemptioner the security of the office (the 'sheriff’s sureties,) for the safe keeping and payment over of the money to the party entitled to it. To hold that the statute intended that the tender could only be made to the pur. chaser or person who made the sale, would be practically to greatly limit the right of redemption, and in many cases entirely destroy it, as the purchaser is not unfrequently a nonresident, and the person who makes the sale may be dead, absent, or incapable of receiving the money. We think, therefore, upon the facts found, that the Plaintiff is entitled to the relief demanded in her complaint, and that the judgment below should be reversed. The cause is remanded to the Court below, with direction to enter judgment accordingly,