St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1896-01-05
DEMURRER IN JOHN j. FLAN-
AGAN'S SUIT.
TAX SALE WAS NOT INVALID.
TION WAS VALID EVEN IF
NOT USUAL.
ERROR DOES NOT MAKE A WRONG
FIanagan's Case Hangs on an Err
rOr, and Must Stand TriaI-Ths
Courts Memorandum.

Judge Kelly yesterday filed an impor-
tant order bearing on the question of
the recovery from the city of money
paid for property sold to satisfy judg-
ments for delinquent local improve
ment assessments. The order overrules
demurrer in the case of John j. Elan
agan against the city of st. Paul. Fol
lowing are the material parts of Judge
Kelly's memorandum:
This action is brought to recover back
from the defendant certain moneys, with in
terest, paid b. plaintiff upon the purchase OF
lands sold under judgment for local assess
ment. Ehe grounds of the action are, first,
that the certificates of sale void on the
face; and second, that the notice of the ex-
piration Of the redemption is insufficient.
The second ground is the one specially re-
lied upon. The facts pleaded are admitted
by the answer, which was served prior TO the
decision of the supreme court affirming rul-
ing OF this court in Bergen V. Anderson, GA
n. w. Rep. Sol. The answer, while reserving
TO the city the benefit of any possible error
in this courts ruling, pleaCs in defense that
since that ruling the defendant city has re-
quired Its city treasurer to issue new re-
demption notice on account of the sales ana
certificates issued as set forth in the complaint
of plaintiff in this action, and this defendant
is ready and willing TO have proper and
sufficient notice of redemption given, and at
the expiration of the time of redemption OF
the sale referred to in plaintiffs complaint
this defendant is ready and willing TO have is
sued to the plaintiff proper deed of the real
estate described pursuant to the certificates,
etc.
In Bergen v. Anderson we held a similar
deed Invalid because prematurey issued that
is, issued without having given the notice
to the land owner required by the city char
ter To the answer in this case the plain
tiff interposed general demurrer that the
facts therein stated do not constitute d de-
Tense in this action. This raises the ques-
ton, can the defendant city lawfully give
the notice of the expiration of the redemption
period required by the charter after the lapse
of five years from the date of the sale?
After quoting the language of the ordinances
relating to the question, Judge Kelly con-
unues as follows:
1T is therefore clear that the owner of the
land sold shall have certainly five years from
land by complying with the provisions OF the
law as to payment. ana we shall see
farther on, under some circumstances this
period may be extended somewhat. He can
not, at any rate, be concluded until the no.
tice is given. CASTOR v. Merriam, SO MINI.
III:
less the city, through its treasurer, give the
notice required within the five years redemp-
ton period, its power to give such notice
is forever after lost. IL this contention be
correct, then whenever for any cause one of
these notices is found invalid and the fve=
year period has expired, evry STEP including
the sale, must fall, the city must begin anew,
readvertise and resell the property, and enter
upon another five years of probation.
If l am correctly advised, every deed that
has ben issued in these cases for over ten
years before the decision in Bergen vs. An
derson is subject to the infirmity in the deed
then considered, and, as the fve-year period
has passed, unless the city can correct it's I'M
intentional errors, it must repay vast sums of
money, with high interest added. 1t has i'm
mediately taken steps to give the proper no.
tice in all ceases. Does the law warrant such
course? The plaintiff insists it does not.
When l reflect how many cases might inval-
1aate publication-how many independent
agencies, each liable to err. enter into it
hesitate in holding that such is the legislative
intent expressed i'll this charter. Indeed 4
am constrained to hold, both upon reason and
upon authority that such is not the intent,
and that plaintiffs position is wrong.
The purchaser at such sales takes his GER
tifcate, insuring him II per cent per annum.
interest on his money, if the property is re-
deemed, or the property itself, at the end of
the redemptin period. Every safeguard is
thrown around the purchase. If finally the
certificate. or deed Issued Hereunder, is set
aside upon the merits the city must return
the purchase money paid, with interest at Z
to such purchaser that he be compelled to
wait, in case like this little longer for
his perfected deed or that little more grace
De gwen the owner to redeem.
1t is urged that if the city can give this
notice after the five years PERIOD the time for
redemption might be Indefinitely extended at
the Will of the city officials. That question is
not here. No suggestion of bad faith has
been made in the pleadings. OF course in a
proper case, where fraud or collision is
SHOWN, the court will not be slow to apply
remedy.
The purchaser at the sale takes his certif.
fcate subject to the owners right to redeem
within the period allowed by law. No one
will contend that such purchaser can demand
the return of his money within the five Years
from the date of sale. That period is abso
lutely fixed. If by the terms of the charter
properly construed, the right to redeem may in
given case be extended beyond the fve-yea1
period, then in the absence Of fraud on the
part OF the city, the purchaser has no better
right to recover back from the city the pur-
chase money, pending the extended period
than he had during the original five Years
The last proposition logically follows from the
hrst; While there are no decided cases di-
rectly passing upon the question the con
struction placed by the supreme court upon
similar statutes relative to sales for general
taxes delinquent and redemption from such
sales, is persuasive, If not conclusive
Judge Kelly then goes on to cite from de.
clslons OF the supreme court in general tax
cases Continuing, he says: This is the
construction OF the supreme court upon q
stantially similar in language The notice re-
CURED is in all cases for the benefit of the
land land owner The time for redemption may
memory and give him an opportunity to save
his land. Applying the language of the SUI
preme court to the charter provisions here
considered, l feel warranted in saying that
| the owners right, under the city charter to
redeem shall continue until terminated by the
publication required by section 139 (supra)
of the municipal code, provided that this re-
demption period shall not in all be less than
five years from the date of the SALE This be
ing so, the plaintiff must wait until the re-
demption period is legally terminated which,
as we have seen, is the condition under
which he made his purchase
The cases universally hold that the statute
specifying a time within which public of
fcer is to perform official act regarding the
rights and duties of others is directory unless
the nature Of the act to be done, or the
phraseology Of the statute is such that the
designation of the time must be considered as
a limitation of the power of the officer.
Plaintiff relies upon the language used in
section 142, Municipal Code 1893 for his right
to recover. In my opinion that section re-
fers to something which goes to the validity
Of the sale itself, and not the unnten-
tionai failure of the city to give notice to stop
the redemption period. If on the trial of this
action anything shall be shown which would
avoid the right Of the city to make any title at
all, perhaps section 142 would apply.
Whether there Is merit in the contention
that the form of the notice set out in the COM
plant is bad, not naming the person to
whom the property is assessed, it is not neces-
sary to determine here. For other reasons
the notice attempted was in law no notice,
ard II defective in form 1t may be corrected
by another notice. In making the assessment
the basis for all further proceedings, the law
! does rot require the name of any person as
owner to be given. See Brennan VS.. City of
s.. Paul, IA Mimi, 400.
There Is nothing in the claim that the GER
tihcates set out in the complaint is void on its
face, and as this seems to dispose of all the
anfc fad