Kenaston v. Great Northern Railway Co.

Supreme Court of Minnesota

Kenaston v. Great Northern Railway Co.

60 N.W. 813, 59 Minn. 35, 1894 Minn. LEXIS 105

CourtSupreme Court of Minnesota

DecidedNovember 5, 1894

DocketNo. 9110

StatusPublished

Cited by12 cases

This text of 60 N.W. 813 (Kenaston v. Great Northern Railway Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kenaston v. Great Northern Railway Co., 60 N.W. 813, 59 Minn. 35, 1894 Minn. LEXIS 105 (Mich. 1894).

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Opinion

Mitchell, J.

It was admitted on the trial that the defendant was the owner of the premises in controversy, unless its title has been divested by plaintiffs tax title. The validity of the tax title depends upon the sufficiency of the notices of the expiration of the time of redemption. The land was offered for sale in May, 1887, for the taxes of 1885, and, for want of purchasers, was bid in for the state. In February, 1.890, the plaintiff took state assignment certificates, and in March of the same year caused to be issued and published the notices referred to. Each of them stated that “the time of redemption from said sale allowed by law will expire sixty days after service; of this notice.”

The law governing the case was Laws 1877, ch. C, § 37 (1878 G-. S. ch. 11, § 121), as amended by Laws 1889, ch. 198, which undoubtedly repealed and superseded Laws 1885, ch. 194, which latter act was passed prior to the decision of State v. Smith, 35 Minn. 257, (28 N. W. 241,) and when it was supposed that the law of 1877 had been repealed by Laws 1881, ch. 10.

The act of 1889 provides that the notice shall state “the time when the redemption period will expire.” This requirement is mandatory. The act further provides, “Nor shall the full period of redemption expire until sixty (00) days shall have elapsed after the service of such notice and proof thereof has been filed.”

The evident meaning of this is that the time of redemption does not expire until the expiration of sixty days after both service of the notice and the filing of proof of such service; in other words, that the sixty days does not commence to run until both have been done. This provision as to filing proof of service was undoubtedly intended both for the convenience of the auditor, and for the benefit of the redemptioner. To hold, as contended by plaintiff, that the sixty days has reference only to the time of service of the notice, would render the provision for filing proof of service practically nugatory, for, by refraining to file such proof until the expiration of sixty days after the [39]*39sendee of the notice, the holder of the tax certificate could render such filing entirely useless.

The notices in this case would have Tbeen, prior to the amendment of 1889, sufficient, under the rule of Parker v. Branch, 42 Minn. 155, (43 N. W. 907.) But, as under the amendment as above construed, the time of redemption does not expire until the expiration of sixty days after the filing of proof of service of the notice, it follows that the notices in this case did not correctly state the time when the redemption period would expire. And, the requirement of the statute in that regard being mandatory, it further follows that these notices were ineffectual, and therefore the land is still subject to redemption by defendant. This renders it unnecessary to consider the other exceptions taken to the sufficiency of the notices.

Cause remanded, with directions to the trial court to modify its conclusions of law, and order for judgment in accordance with this opinion.

Gilfillan, C. J., took no part.

(Opinion published 60 N. W. 813.)

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Mitchell, J.

It was admitted on the trial that the defendant was the owner of the premises in controversy, unless its title has been divested by plaintiffs tax title. The validity of the tax title depends upon the sufficiency of the notices of the expiration of the time of redemption. The land was offered for sale in May, 1887, for the taxes of 1885, and, for want of purchasers, was bid in for the state. In February, 1.890, the plaintiff took state assignment certificates, and in March of the same year caused to be issued and published the notices referred to. Each of them stated that “the time of redemption from said sale allowed by law will expire sixty days after service; of this notice.”

The law governing the case was Laws 1877, ch. C, § 37 (1878 G-. S. ch. 11, § 121), as amended by Laws 1889, ch. 198, which undoubtedly repealed and superseded Laws 1885, ch. 194, which latter act was passed prior to the decision of State v. Smith, 35 Minn. 257, (28 N. W. 241,) and when it was supposed that the law of 1877 had been repealed by Laws 1881, ch. 10.

The act of 1889 provides that the notice shall state “the time when the redemption period will expire.” This requirement is mandatory. The act further provides, “Nor shall the full period of redemption expire until sixty (00) days shall have elapsed after the service of such notice and proof thereof has been filed.”

The evident meaning of this is that the time of redemption does not expire until the expiration of sixty days after both service of the notice and the filing of proof of such service; in other words, that the sixty days does not commence to run until both have been done. This provision as to filing proof of service was undoubtedly intended both for the convenience of the auditor, and for the benefit of the redemptioner. To hold, as contended by plaintiff, that the sixty days has reference only to the time of service of the notice, would render the provision for filing proof of service practically nugatory, for, by refraining to file such proof until the expiration of sixty days after the [39]*39sendee of the notice, the holder of the tax certificate could render such filing entirely useless.

The notices in this case would have Tbeen, prior to the amendment of 1889, sufficient, under the rule of Parker v. Branch, 42 Minn. 155, (43 N. W. 907.) But, as under the amendment as above construed, the time of redemption does not expire until the expiration of sixty days after the filing of proof of service of the notice, it follows that the notices in this case did not correctly state the time when the redemption period would expire. And, the requirement of the statute in that regard being mandatory, it further follows that these notices were ineffectual, and therefore the land is still subject to redemption by defendant. This renders it unnecessary to consider the other exceptions taken to the sufficiency of the notices.

Cause remanded, with directions to the trial court to modify its conclusions of law, and order for judgment in accordance with this opinion.

Gilfillan, C. J., took no part.

(Opinion published 60 N. W. 813.)

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Bluebook (online)

60 N.W. 813, 59 Minn. 35, 1894 Minn. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenaston-v-great-northern-railway-co-minn-1894.

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