Shelton v. Dunn

The opinion of the court was delivered by Safford, J.: i. jtogmott. no a^°bUtumed This was an action for the recovery of real estate, brought under the provisions of Title 18, §§ 569 to 577, Code of 1859, Comp. L., 1862. A jury having been waived, the issues were tried by the court, and judgment was rendered in favor of the plaintiff below, now defendant in error. There were no separate findings of the facts, and of the law, as it is provided there may be when either party desires to except to the decision of the court upon the questions of [133] law involved in the trial: § 290, Code of 1868. Neither does the record which is brought here purport to contain all the evidence offered by the parties. Under these circumstances, as we have heretofore frequently held, this court cannot undertake to examine into the case with the purpose of discovering whether or no every fact necessary to be proved in order to sustain the general finding, was so proved, and by Sufficient evidence. So far then,' as any question of this kind enters into the discussion of this case on the part of the plaintiff in error, it may be laid aside as settled.'' • This conclusion will apply to the point last made in the brief of the plaintiff in error. It will also apply to the second point in said brief, which is to the effect thaf the court erred in the judgment rendered, because it was not shown in the petition, nor by the evidence on the trial, that the plaintiff had before the commencement .of his suit tendered to the defendant therein the amount of taxes, interest, and costs due on the land in question, as it is required by law that he should have done; §11, ch. 198, Comp. L. 1862. It is true that the récord contains evidence tending to show that no such tender was in fact made; and it does not contain evidence going to establish the fact of such tender; but for all this, such last mentioned evidence may still have been introduced, and that too of such a, character as to have convinced the court of its truth, notwithstanding that offered to the contrary, and appearing in the record. The court, then, may have found this very fact of .the tender in favor of the plaintiff below; and inasmuch as the contrary does not appear, it is our duty so to presume, if it be necessary to sustain the judgment. [134] s. emctmeot. Petition in; its requisites, [133] •II. But it is said that it was necessary for the plaintiff [134] to plead such tender, in order to prove it, in this case, "We do not think so; and in support of this . . _ . . opinion call attention to the necessary requisites of the plaintiff’s petition in ejectment, as stated in section 570 of the statute first above referred to. It may also be remarked in this connection, that the lack of a tender in the cases intended to be covered by section eleven of ch. 198 above mentioned, would, as it seems to us, furnish grounds for a plea in the nature of a plea in abatement by the defendant. s. Evidence, miuend.p“o1 a IH. It is further urged that the court below erred in admitting parol evidence of certain facts respecting the assignment of the tax-sale certificate by the county of Miami to the plaintiff in error; such evidence was objected to on the ground that it was of a secondary character, it being insisted that the assignment itself must first be' produced, or its absence accounted for. As we understand the object of the evidence offered, it was clearly admissible. Proof had already been offered, and without objection, tending to show that the assignment in question had been executed on a particular day, to-wit, on the 20th of April, 1864. The evidence in question was then offered to show that such assignment was in fact made and delivered on a different day. It went direct to this point, and thus tending to establish it, it was the right of the party offering it to have it considered by the court. The authorities in support of this position are full, and to the point. ;2 Phillips Ev., 856, and Note, and authorities there cited. 4._KedemPuoii “¿01?vow. IV. The next and last alleged error, necessary to be considered in this case, relates to the admission in evidence by the court below, of certain receipts signed by the treasurer of Miami county, and [135] purporting to acknowledge the payment, by the plaintiff below, of all the taxes, interest, costs, and charges, due on the land for the recovery of which suit was brought, and which said receipts were dated September 10th, 1868, or about two months prior to the time when the assignment and delivery of the tax-sale certificate took place, according to the evidence of the county clerk and county treasurer, and about the same length of time prior to the execution and delivery of the tax deed. The alleged grounds of objection to such admission are, that such receipts have none of the attributes of certificates of redemption, under § 87, ch. 118, Laws of 1866; and second, that if they had, they were of no validity, for the reason, that they showed upon their 'face that they had not been countersigned by the county clerk as it is required they should have been by said section. As to the first point, it is not‘clear, and it is perhaps not important to inquire. But we have no doubt as to the last.1 If the object of the payment shown by the receipts was to secure a redemption of the land from the previous tax sale, the receipt or certificate given by the treasurer should have been countersigned by the clerk in order to give it any validity. Such is the plain and positive requirement of the law, which was enacted for very good, and no doubt sufficient reason's. ‘ It follows then, that the receipts offered in evidence, not having been countersigned by the county clerk, were of no validity as showing a redemption of the land in question. We have, however, no hesitation in saying, that if the plaintiff below did in fact pay to Miami county — she then being the holder of the tax-sale certificate — all taxes, interest, costs, and charges due thereon, and on his land, up to th'e tax of 1868, he was entitled, by virtue of such pay [136] ment, to demand and receive from the proper county officers, a legal, sufficient and valid redemption-certificate for such land from the tax sale of which such tax-sale -certificate was the evidence. Being so entitled, and not receiving it, through or by the fault or réfusal of'such officers, he could not thereby be deprived of his right of redemption; but such officers might be compelled, by the institution of proper proceedings, and the payment or the tendering of their lawful fees for the services to be rendered, to perform their duty in the premises. If, however, such plaintiff, through.his own fault or neglect, failed to receive such a redemption-certificate as had all the requisites to make it valid under the law, it is but right that he should suffer the consequences, • whatever they may be. Thus, if on receiving his certificate from the county treasurer, he failed and» neglected to present the same to the county clerk for his certification, and an entry thereof on his books, as he seems to have done, he has only himself to blame, that it is thereby rendered invalid for the purpose of showing the fact of redemption. It is our opinion that the court erred in permitting the receipts to be read in evidence in the shape they were in when offered, and the case must therefore go back for a new trial. Judgment reversed, and a venire de novo awarded. All the Justices concurring.