Sanborn v. Cooper

Mitchell, J. Actions to determine adverse claims to vacant and' unoccupied real estate, under Gen. St. 1878, c. 75, § 2. In each case-defendant in her answer denies plaintiff’s title, and alleges title in. herself under “a tax judgment sale,” made December 16, 187G, and alleges that no action had been brought within five years after the date of sale to set aside the certificate of sale, or to test the validity of such sale, and demands as affirmative-relief that she be adjudged the owner in fee of the premises, and that plaintiff be adjudged to have no right, title, or estate therein. The reply denies all the allegations of the answer, except that it admits that no action had been brought within five years to set aside any certificate of sale, or [309] to test the validity of any pretended tax sale. On the trial plaintiff proved a perfect chain of title in himself from the United States. Defendant offered in evidence a certificate of sale, purporting to have ■been made pursuant to a tax judgment by the county auditor to one Lord, on the 16th of December, 1876, to the admission of which ■plaintiff objected, on the ground that no evidence had been offered ■of any tax judgment, or of any authority to the auditor to make the ■■sale. The court overruled the objections and admitted the certificate. The only other evidence offered or introduced by defendant was a deed from Lord to herself, and that the premises had not been redeemed from the alleged tax sale. On this state of facts, the court found as ■conclusions of law that defendant was the owner in fee-simple of the premises, and that plaintiff had no interest or title therein, and ordered judgment accordingly. The ground upon which the decision was put is that, no action having been brought to set aside or test the validity of the tax sale within five years, the title of the purchaser at such sale became absolute and cannot now be questioned. The sale was made under the general tax law of 1874, as amended by Laws 1875, c. 5, § 30, the important provision of which is as follows: “Sec. 125. Such certificate, or the record thereof, shall, in all cases, be prima facie evidence that all the requirements of the lawiw respect ;to the sale have been complied with, and no sale shall be set aside or held invalid unless the party objecting to the same shall bring his •action to set aside such certificate, or to test the validity of such sale, within five years from the date of the sale.” It is elementary that, according to the common-law rule, this certificate would be inadmissible without proof of the authority of the auditor to make the sale. To sustain a conveyance executed by an .attorney under a power of attorney, by an executor under a will, by ■a sheriff under an execution, by a guardian or administrator under ..an order of court, by a commissioner under a decree of court, the power of attorney, the will, the judgment and execution, and the decree, must be first produced and put in evidence. If this certificate is prima facie evidence of any of the precedent acts necessary to clothe the auditor with authority to sell, it is only so by force of the .statute, and only to the extent it is expressly made so. But this [310] statute only makes the certificate of sale prima facie evidence “that all the requirements of the law in respect to the sale" have been complied with, but not of the precedent acts necessary to authorize the auditor to make the sale. It is not made prima facie evidence of the tax judgment, -which is the source of his authority to sell. This would have to be first proved aliunde, as before. The extent of the effect of the statute is merely to make the certificate prima facie evidence of the regularity of the proceedings connected with the sale itself, such as the giving of notice of the time and place of sale, the fact of sale,, and that it was conducted in the manner required by law, and the like. That this is the extent to which it goes is, we think, almost self-evident from the language of the statute itself. If necessary, this view could be abundantly sustained by decisions of other courts, in construing similar statutes. The defendant insists, however, that this rule is somehow changed, or inapplicable, from the fact that the so-called statute of limitations has run, the action not having been brought within five years after the sale. But this is not a question of the statute of limitations, but. of the competency of evidence. How can the fact that the statute-has run render that competent which before would have been incompetent ? The trouble is, the statute is not broad enough for defendant’s purposes. It needs a tax judgment behind it to set it in motion.. Until she proves a tax judgment authorizing a sale, she can never reach a point to invoke the application of the statute. See Dawson v. Helmes, 30 Minn. 107. Had she proved such a judgment, she-might be in position to successfully insist that plaintiff -was not entitled to have the sale or certificate set aside on account of an omission to comply with any of the requirements of law respecting the sale. But the case now stands precisely as if she had introduced no=. evidence, because she has produced no competent evidence. Orders reversed, and new trial ordered in both actions.