Croswell v. Benton

Collins, J. This was an action in ejectment, in which the defendants had a verdict. The present appeal is from an order granting a new trial because the court below was of the opinion that it erred when charging the jury. The plaintiff was the owner of the property, unless her title had been divested in proceedings under Laws 1881, ch. 135,—the act .to enforce the payment of taxes which became delinquent in and prior to 1879; and the regularity of the sale of.the premises to defendants’ predecessor in interest under that act is not questioned, except as will appear from the following statement: The tax for the year 1875 against the property became delinquent June 1, 1876, at which time, under the law, the county treasurer returned the .tax lists to the auditor. For some reason the latter officer took no further steps tending to enforce the collection of this tax until September, 1881, when he placed the property on the list provided for in section 1 of the act of 1881, as delinquent for the year 1875, and sale was had, as before stated. It appeared from the testimony that on June 14, 1877, plaintiff, by her agent, applied to the county auditor for a statement of all taxes upon this and other lands. A statement was delivered by the auditor, in which he certified that a certain sum was the amount of taxes delinquent on the tract in question “for the years specified.” The blank space in which the year or years. [269] should have been designated was not filled, however, so that it did not appear for what year or years the delinquency existed. The •suxn specified was paid in the belief that it covered all delinquent taxes upon the land, the treasurer receipting therefor upon the auditor’s statement or certificate. The fact was that the tax before mentioned as delinquent for the year 1875 was not included, and plaintiff only paid the amount then due as the delinquent tax for the year 1876. It is asserted by respondent’s counsel that no real distinction can be pointed out between the case at bar and that of Forrest v. Henry, 33 Minn. 434, (23 N. W. Rep. 848.) There the land had been bid in by the state at the sale in 1875. The owner, wishing to redeem, applied, as required by the statute, to the auditor, for a statement or certificate of the amount necessary to be paid in redemption. It was made the duty of the auditor to furnish such statement or certificate on application, and the statute provided that in order to redeem it was necessary to pay, not onlv the amount for which the land was bid in, but also all subsequent taxes, penalties, and interest, this amount constituting one certain and indivisible claim of the state against the land. Furnished with the auditor’s statement or certificate, the owner had the right to redeem by paying the amount specified to the county treasurer. 'The statute expressly provided that, “if the amount so paid for the purpose of redemption be less than the amount required by law, it shall not invalidate such redemption, but the auditor shall be liable for the deficiency to the person entitled thereto.” Under these facts, and because of these statutory provisions, the court held that when 'a party had redeemed by paying the amount thus ■certified to by the auditor the redemption was valid, notwithstanding the amount so paid was, by reason of the auditor’s mistake, less than that actually required by law. In the case at bar the land had never been sold for taxes. They were simply delinquent when the application was made to the auditor. There was nothing from which to redeem, and what the owner desired to do, and the only thing she could do, was to pay the taxes, not to make redemption. When lands have become delinquent for nonpayment ■of taxes, and the lists have been returned to the auditor by the treasurer, and a party desires to pay the taxes, it is implied, at [270] least, from the provisions of 1878 G. S. ch. 11, § 69, that he must obtain a statement of the amount of the delinquency, including penalties and interest, from the auditor, and then pay to the treasurer. But there is no provision of the statute which authorizes or requires the auditor to certify generally that there are no delinquent taxes or tax liens on the property, or that delinquent taxes or tax liens exist for certain years only, or that gives any effect to a certificate of such a nature. There is such a provision when the lands have been sold, as was the case in Forrest v. Henry, and the cases of a redemption of land from a sale, and the payment of a delinquent tax when the land has not been sold, are entirely different. In the one case the amount for which the land has been sold, to the state or to an individual, with interest, and all subsequent taxes, penalties, and interest, is an entire claim, under the statute, all of which must be paid, as a condition of redemption, while in a case where there has been no sale a party may pay the tax for any one year without reference to what may be due for other years. If the redemption is not made effectual, either by payment of all that is actually due, or by a payment which, because of the statute, is equivalent to the payment of all that is due, the right to redeem may be lost, while in a case where the taxes are simply delinquent the land cannot be sold without proceedings to obtain judgment against it, of which the owner will have the notice provided by statute. To hold that the payment made in 1877 by plaintiff’s agent amounted to payment of all taxes then due, in the absence of a statute similar to that pertaining to redemption from sales, and passed upon in the action referred to, would lead to most serious results. Should an auditor erroneously inform a party that there were no delinquent taxes against his land, or should a treasurer, by mistake, inform one that there were no taxes assessed against his property for the current year, and reliance be placed upon this information, in utter disregard of future proceedings to enforce the collection of taxes through judgment and sale, no judgment could be obtained, and no sale had, which would not be open to attack, and liable to be avoided, by means of oral testimony as to what inquiries were made of the officials, and what answers they gave. This would be the inevitable result of such a holding, and, [271] should we follow the cases cited by respondent’s counsel, we could not stop short of it. Where judgment has. been obtained and sale made in proceedings to enforce the collection of taxes, the statute points out with exactness the duty of the party desiring to redeem, and prescribes the force and effect of a payment made by him upon the auditor’s statement as to the entire sum due. It provides-that mistakes of the auditor shall not operate to the injury of the redemptioner. Not so when the act of the party is payment,, merely, and not redemption, and herein lies the distinction between this case and that of Forrest v. Henry, supra. The validity of tax sales cannot be placed at the mercy of any one who by design, or through honest mistake, testifies that at some date after the taxes became delinquent, and while they were delinquent, merely, he inquired of the auditor, and was informed that there were no-delinquent taxes against his land, in the absence of a statute to that effect. Notice must be taken of subsequent statutory proceedings. With this view of the effect of the law of the case, there was no error in the charge of the court, prejudicial to the plaintiff. (Opinion published 55 N. W. Rep. 1125.) There is nothing in the contention of respondents counsel that the act of. 1881 related only to lands which had been forfeited to. the state. Its title and its various provisions clearly indicate that it had a broader scope. It was an act to enforce the payment of taxes which became delinquent prior to the year 1879. Nor is there any merit in the claim that defendants’ ancestor-waived his right, and the right of his heirs, to assert against this plaintiff the tax title derived in 1881 by giving notice in 1887 to redeem from the sale made in 1883, and that such sale was redeemed from. It is sufficient to say, in respect to the offer to show what transpired in 1887 as to the notice to redeem, and the alleged redemption, that plaintiff did not offer to show that notice was. served upon or addressed to her, or that she had anything to do with the redemption said to have been made. Order reversed. Vanderburgh, J., did not take part.