Flickinger v. Cornwell

CORSON, J. This action was instituted by the plaintiff to quiet his title to a quarter section of land in Faulk county. The complaint is in the usual form, alleging that the plaintiff is the' owner in fee of the property, that the defendants wrongfully claim an interest therein, and prays that his title may be quieted. The defendants in their answer deny that plaintiff is the owner in fee of the property in controversy, and allege that they are the owners of the same (1.) by virtue of a tax deed issued by the county treasurer of Faulk county under the provisions of the general revenue law for taxes delinquent for the year '1903: (2) under and by virtue of a tax sale Certificate issued by the county treasurer of Faulk county on the 6th day of November, 1901, under and by — 385 — virtue of chapter 51, p. 51, Laws 1901, and duly recorded. They also pleaded the three-year statute of limitations provided in the general revenue law and the two-year statute of limitations contained in said chapter 51 of the Session Laws of 1901 in bar of the action. The plaintiff in his reply alleged that the tax deed, for reasons therein specified, issued under the general ■ revenue law, was void upon its face; that the notice of redemption provided for in the law of 1901 was insufficient to vest any title in the defendant, for the reason that the last publication of the notice of the time when the redemption would expire was published less than 90 days prior to the maturity of said certificate, as specified in the redemption notice, and was therefore void. Findings and judgment being in favor of the defendant, the plaintiff has appealed. The trial court having held the deed under the general revenue law void upon its face, it will not be necessary to further consider it in this opinion. It will be seen that only three questions are presented for the consideration of this court on this appeal: (1) Was the publication of the notice by the defendant I. A. Cornwell that the certificate issued by the county treasurer would become absolute unless redeemed as designated in the notice of redemption a sufficient compliance with the law to vest the fee-simple title in him? (2) Was the action barred by the two-year statute of limitations provided for in the act of 1901? (3) Was the action barred by the three-year statute of limitations in the general revenue law? It is found by the court that an action under the act of 1901 was duly commenced; that proceedings were had thereunder resulting in a judgment in favor of the county; that a sale was duly made under the judgment, the property bid in by the defendant I. A. Cornwell, and a tax sale judgment certificate issued to him as provided in said act; that the treasurer’s said tax sale certificate was issued November 6, 1991, and recorded on the 7th day of November, 1902; that the said defendant I. A. Cornwell caused to be published the following notice: .“Notice is hereby given that the tax certificate No. 15 held by the undersigned to the following, de^ scribed real estate: Northwest-quarter of section 10, township 120, — 386 — range 67, will become absolute unless redeemed before the 6th day of November, 1902. Dated July 15th, 1902. I. A. Cornwell, Owner of Certificate.” This notice was published on August 1, August 8, and August 14, 1902. The court concludes' as matter of law that this action not having been commenced within two years after the maturity and recording of the treasurer’s certificate on the tax judgment sale, this action is barred by the statute of limitations, and that the defendant Cornwell is entitled to a judgment quieting his title to the premises. It is contended by the appellant that, as it appears from the affidavit of the publisher of the notice that the certificate would become absolute unless redeemed before the 6th day of November, 1902, and the last publication made thereof being made on August 14, 1902, less than 90 days’ notice was given before the time for redemption fixed by the notice, and said notice was therefore void. By section 15 of the act it is provided “that the holder of any certificate for any piece or parcel of land sold under tax judgment must not less than 90 days preceding the maturity of such certificate serve personal notice upon the owner if he be a resident of the county where such real estate is situated of the maturity of said certificate and if the owner * * * is not a resident of the county * * * or not within such county such notice may be given by publication in some newspaper published in the county * * * for at least three weeks, the last publication to be made at least 90 days immediately preceding the expiration and maturity of such certificate.” It will be observed that the last publication must be made at least 90 days before the maturity of such certificate. It affirmatively appears >in this ease that 90 days did not intervene between the 14th day of August, the date of the last publication of the notice, and the 6th day of November, the day at which by the notice the time for redemption would expire. It is contended by the respondent that, inasmuch as it is provided by the latter clause of section 15 that the fee simple of any piece, parcel, or lot of land named in any certificate shall not vest in the holder thereof until the notice provided for therein is given and due proof thereof filed with the clerk of the circuit court, the omission to give 90 days’ notice by the publication had the effect — 387 — of extending the time for redemption until the go days in fact did expire. This contention is untenable, for the reason that while it may be conceded as held by the learned Supreme Court of North Dakota in Darling v. Purcell, 13 N. D. 288, 100 N. W. 726, for the purpose of this decision that the time for redemption may be extended by the failure to give the notice within the year specified in the statute, the notice, when given, must fix the proper date when the time for redemption will expire, and, unless it does so, the notice is fatally defective. In Gage v. Bailey, 100 Ill. 530, the Supreme Court of Illinois held that “a notice by publication of a purchase of land for taxes which states that the time of redemption will expire on October 26, 1876, when it does not expire until November 6, 1876, is fatally defective,” In Cable v. Coates, 36 Kan. 191, 12 Pac. 931, the Supreme Court of Kansas held that “where the date of a tax sale was September 4, 1878, and the redemption notice and list state the land must be redeemecl on or before September 5, 1881, a tax ^ deed issued on September 5th, and filed for record at 2 o’clock p. m. of the same day, is prematurely issued, and the owner of the land has the right to avoid the tax deed, as he has three years from the day of sale, and any time before the execution of the deed, to redeem his land; and, in computing the three years time, the day of sale is to be excluded. English v. Williamson, 34 Kan. 212, 8 Pac. 214.” The rule laid down in the above cases seems to be sustained by the great weight of authority. Landregan v. Peppin, 86 Cal. 122, 24 Pac. 859; Gage v. Davis (Ill.) 14 N. E. 36; Benefield v. Albert, 132 Ill. 665, 24 N. E. 634; Brophy v. Harding, 137 Ill. 621, 27 N. E. 523, 34 N. E. 253; Hollenbeck v. Ess, 31 Kan. 87, 1 Pac. 275; Hill v. Timmermeyer, 56 Kan. 252, 13 Pac. 211; Wilson v. McKenna, 52 Ill. 43; State v. Nord, 73 Minn. 1, 75 N. W. 760; State v. Halden, 62 Minn. 246, 64 N. W. 568; Peterson v. P. Mast & Co., 61 Minn. 118, 63 N. W. 168; Kenaston v. Railway Co., 59 Minn. 35, 60 N. W. 813. It was not competent for the tax judgment sale purchaser to shorten the time of redemption. The attempt, therefore, of such purchaser to shorten the time, rendered his notice ineffectual for any purpose, and consequently under the statute the fee of the premises in controversy did not vest in the holder, as it is provided no title shall — 388 — vest in the holder -until the notice-provided for. is giyen and-due proof' thereof filed- with the clerk of'-the-circuit-court.- ;The notice of redemption; not being in' -compliance -with the .law was- void, and no title was vested in -the defendant Cornwell. . - • No title- being vested in the defendant-'Corn-well, is th-is action barfed -by: the ttfo-year-.statute of limitations1 of -1901 ? - It- i-s -provided by section 18 -of -said, chapter 51, before'referred---to that: “The validity of any sale shall not be called into- question unless the action, in which the validity of the sale shall-be called in- question, shall be brought or the defense alleging -its invalidit)'- be interposed, within two years-from the date of-the sale: -,A sale shall be deemed completed within the provisions of this- act, when the certificate thereof has been issued by the treasurer.” It is contended by -the respondent t-hat, as the certificate of sale had been recorded for more than two years prior to the .commencement of this action, the action was barred under that statute-. It is contended by the appellant that the bar of' that statute only applies to the sale and proceedings had theretofore in the action, and does not apply to subsequent proceedings after the sale. We are of the opinion that the appellant- is right in his contention, and that the Legislature intended by the use of the term “sale” to limit the bar of the statute to the' sale proper and to the proceed!ngs had in the action prior thereto.' The last clause of the section, providing “that a sale shall be deemed completed within the provisions, of this act, when the certificate thereof has been issued by the treasurer,” was clearly intended to fix the time as to the completion of the sale at the date of the issuance of th-e certificate, and not at the day on which the sale was actually made. It was no doubt contemplated that, as there would be a large -number of sales and many certificates issued, the}*- woul-d necessarily be issued -at different dates, and bence, in -order to fix definitely the time when the bar of the statute would commence to run, the time wf £n in fact the certificate of sale was issued was fixed at the -time when the sale should be deemed completed. This conclusion seems to necessarily fo-llo-w from the fact' that there were subsequent acts to -be- performed by the purchaser before the title would- actually vest in him, and that- -such time might be extended -by -his failure .to give the notice required by the statute — 389 — within the one year specified therein, and thereby the time for redemption extended until the proper notice should be given and the proper proof as to th,e giving of the same, should be filed in the office of the clerk of the court. Darling v. Purcell, supra. The statute of limitation,' therefore, does not properly apply to the subsequent proceedings so under the control of the tax purchaser. It is further contended by the appellant that the action is barred by. the three-year statute of limitations provided for in the general revenue law, but we cannot agree with counsel in this contention. The limitation provided in the general revenue law is only applicable to deeds issued by county treasurers and recorded under the provisions of that law. We would not be justified in holding that the three-year statute of limitations found in the general revenue law and applicable to deeds recorded under that law is also applicable to the proceedings under the act of 1901. The provisions of the latter, act are entirely separate and distinct from the provisions in the general revenue law, and the latter act was a special act limited by its terms to the year 1901, and was not carried into the 'Revised Code of 1903. The act was complete in itself, and, as will be observed, its provisions are entirely distinct from those contained in the general revenue law. The court was clearly in error in holding that this action was barred by the two-year statute of limitation’s, and the judgment of the circuit court and order denying a new trial are reversed. FULLER, J., taking no part in this decision.