State ex rel. Ray v. Halden

MITCHELL, J. 1. The notice of the expiration of the period of redemption was clearly insufficient, under the doctrine of Kenaston v. Great Northern R. Co., 59 Minn. 35, 60 N. W. 813. The notices in the two cases are not distinguishable on principle. The notice in the present case was that the time for redemption would expire “sixty days after service of this notice in ihe manner prescribed by section 37, c. 6, Gen. Laws Minn. 1877, and amendments thereto.” This reference to the statute did not aid the notice. The words “in the manner,” etc., refer, as their antecedent, to the words “service,” etc., immediately preceding. The statute requires that the notice itself shall state when the redemption period will expire. It is not enough to refer to the statute on the subject. 2. The statute provides that the real-estate assessment book prepared by the county auditor shall show, among other things, “the [249] names of the owners, if to him known, and, if unknown, so stated opposite each tract or lot.” G-. S. 1894, § 1537. The statute relating to notice of the expiration of the redemption period provides for the preparing of “a notice to the person in whose name such lands are assessed”; also, “if the person named in such notice cannot be found in the county and there be any person in the actual possession of the land in such notice described, the same shall in like manner be served upon him,” but “if there be no person in the .actual possession of said land * * * the service of the said notice shall be made thereafter * * * by publication,” etc. Id. § 1654. In this case the land in question was not assessed in the name ■of any person, but the name of the owner was stated in the assessment book as unknown. Neither was there any person in the actual possession of the premises. The contention of the appellant is that no notice of the expiration of the period of redemption was necessary under the circumstances; that the statute requiring such notice is inapplicable to such a case, because there is no person to whom the notice could be addressed, or upon whom it could be ■served, and hence the requirements of the statute cannot be complied with. We do not concur in this view. In our opinion, the statute is just as applicable to cases where the owner of the land is stated to be unknown as where the property is assessed in the name of a known owner or supposed owner. Where the owner is ■stated to be unknown, of course the notice could not be addressed to any particular person by name. Whether, in such case, any investigation should be made to find the owner, or whether, without any such effort, service might be made on the person, if any, in the actual possession of the premises, we need not now consider. But at least where the owner cannot be found, and there is no one in actual possession, there is no reason why ihe notice may not be served by publication, where the name of the owner is unknown as •vyell as where the land is assessed in the name of a known owner. If it is required to be addressed to any one, it can be addressed to the “unknown owner.” We think the statute contemplates that this shall be done, and such, we think, is the construction which has been usually placed upon it by the bar. Any other construction would open wide the door for fraudulent and collusive practices [250] that would, to a great extent, nullify tbe beneficent object of the statute. 3. Mandamus to compel the county auditor to permit the relator to redeem and to execute certificates of redemption was a proper remedy. The purpose of the proceedings is not to determine a question of title to the land (although incidentally it has that effect), but to compel the performance by the auditor of an act which the law specially enjoins as a duty resulting from his office, and to the performance of which the relator is entitled as an absolute legal right. 4. We think the appellant wholly misapprehends the meaning of G. S. 1894, § 1662. The sole purpose of this statute was to extend the time for redemption from a tax sale from two years to four-years where the owner died before the expiration of the period of redemption. It was not designed to dispense with the giving of notices in such cases, or to absolutely limit the period of redemption to four years, notwithstanding that no notice had been given. Judgment affirmed.