State ex rel. Slingerland v. Norton , 59 Minn. 424 ( 1894 )

Canty, J.

This is an appeal by the defendant from a judgment In a mandamus proceeding, adjudging that a writ issue ordering the respondent, as county auditor of Dodge county, to draw his order in favor of relator upon the county treasurer for a certain sum in repayment of certain sums paid the county on four tax sales which have been declared void by the judgment of the court, as provided in 1866 Gr. S. ch. 11, § 155. The proper amount was paid into the county treasury, as payment in the first of these four void tax sales, June 4, 1866, and as payment in the last on June 6, 187b. Said section 155 was in force during all this time, but has since been repealed, and all subsequent legislation providing for the repayment of the sums so paid has been repealed. But the trial court held that the provisions of said section 155 became a part of the relator’s contract, and that any subsequent repeal assuming to take away his right to refundment would be unconstitutional; citing Fleming v. Roverud, 30 Minn. 273, (15 N. W. 119.) The appellant concedes that the position of the trial court is correct in all respects, except that he should have held the claims barred by the. statute of limitations, which he pleads in his return to the writ. It was stipulated, for the purposes of the trial, that the taxes for which the void tax sales were made, were duly assessed on the land in question. By sections 142 and 151 of said chapter.il, the lien of the state for the tax was transferred to the purchaser at the tax sale, with the right to enforce that lien against the land. But the statute of limitations runs against the right to enforce such a lien in six years. County of Redwood v. Winona & St. P. L. Co., 40 Minn. 512, (42 N. W. 473;) Mower County v. Crane, 51 Minn. 201, (53 N. W. 629.) It is contended by appellant that, by permitting the statute of limitations to bar his right to enforce this lien, the relator was guilty of laches, which should be held to bar his right to recover from the state the amount paid it. We cannot' agree with counsel. Such a limitation on his right to refundment' cannot be reasonably implied. Nearly one-half of the six-year.period of limitation had run before the time to redeem from the tax sale expired. If the owner redeemed, there would be no occasion to enforce the lien. If the owner did not, the holder of the tax title would have only about three years left in which to ascertain that his title was defective, and proceed to enforce his tax lien. Said section 155 provides that “when a sale of any lands as provided in this chapter, is declared void by the judgment of court, * * * the money paid by the purchaser at such void sale shall be refunded to him out of the county treasury, on the order of the county auditor.” It is not a condition precedent to refundment that the holder of the void tax title shall first attempt to enforce his lien for the taxes, and it cannot be held that he is guilty of laches in failing to enforce it in so short a time.

It is further contended by appellant that relator is guilty of laches in failing for so long a time to have his right to refundment determined, It was stipulated on the trial that the suit by the owner of the land against the relator herein, in which the sale was declared void by the judgment of the court, was commenced in July, 1893, being more than twenty three years after the relator paid the purchase money bid at the last void tax sale, being the last money paid which he now asks to have refunded to him. It is contended by appellant that relator is guilty of unreasonable delay in ascertaining his rights, and that his laches is a bar to this proceeding. We are of the same opinion.- It is true that relator’s right of action for refundment does not accrue until the judgment declaring the tax sale void is entered in the prior action, and that the statute of limitations has not run until six years after that time. Easton v. Sorenson, 53 Minn. 309, (55 N. W. 128.) But it does not necessarily follow' that the relator has an unlimited time in which to have his rights determined by the entry of that judgment. He may himself commence the action which will determine those rights and result in the entry of that judgment. Fleming v. Roverud, 30 Minn. 276, (15 N. W. 119.) Where the condition precedent to bringing suit is not a part of the right or cause of action, but merely a part of, or one step in, the remedy, it does not delay the running of the statute of limitations at all. Litchfield v. McDonald, 35 Minn. 167, (28 N. W. 191.) But the entry of this judgmerit is not merely a step in the remedy. It is a part of the right, or a condition precedent in the contract, and no cause of action accrues until the condition happens; hut the happening of the condition is largely in the control of the relator. When he purchased his tax titles, there was an implied agreement that he should make some proper use of them. It was not intended that he could permit them to lie for twenty three or fifty or one hundred years without attempting to utilize them in any manner. Neither should it be held that every purchaser at a tax sale necessarily bought a law suit. If the land was vacant when the time to redeem expired, he might take and hold adverse possession, and if he did so for fifteen years thereafter he would have a good title; but if ejectment was brought against him during the fifteen years, which resulted in a judgment of ouster, it cannot be said that he was guilty of laches in not having himself brought action sooner. On the other hand, if the premises are occupied, by the former owner when the time tO' redeem expires, and he holds adverse possession of them for fifteen years thereafter, a valid tax title is barred. • No suit thereafter brought would test the real merits of the tax title, and, if it purported to do so, it would be subject to the charge that it was fraudulent and collusive. In any event, no such suit would result in the judgment contemplated by the statute. But there can be no two or three rules of limitation or laches, to be applied according as one party or the other, or neither, is in possession. At the time of the tax sale, the land may have been vacant, or the purchaser or the former owner may have been in possession, and the possession may have changed when the time to redeem has expired; the question of possession is beyond the control of the state. If there is a rule of limitation applicable to any one or more of these cases, it should be applied equally to all of them. We are of the opinion that there is such a rule, and that it is as indicated, fifteen years after the time to redeem expires. The time to redeem expired in two years after the-tax sale, so that such action in which such judgment is entered must be commenced within seventeen years after the tax sale, or the right to refundment from the state is barred. As the prior action in this case was not commenced until twenty three years after the tax sale, the judgment must be reversed.

The principle here adopted is not a new one. It has often been lield that where th^re is a condition precedent to the accruing of a cause of action, and it is in the power of the plaintiff to perform that condition, by analogy the statute applies, and will commence to run .against the performance of the condition when the proper time to perform it arrives; and when performance is thus barred it will prevent the cause of action from ever accruing. Codman v. Rogers, 10 Pick. 112; Pittsburg & C. R. Co. v. Byers, 32 Pa. St. 22; Palmer v. Palmer, 36 Mich. 487; Atchison, T. & S. F. R. Co. v. Burlingame Tp., 36 Kan. 628, (14 Pac. 271.) In such a case, the statute by analogy .applied should not always be the one that applies to the cause of action after it accrues, but the one which naturally applies to the performance of the condition itself, which in this case is the statute which "bars the action for the recovery of the possession of real property. In this case it does not appear whether one or the other party is in possession, or the land-is vacant and unoccupied, and under the rules we have laid down it is immaterial. If the relator did not choose to assert his rights by taking possession when the time to redeem from the tax sale expired, he should have done so by commencing the proper action within fifteen years thereafter. By failing to do so he is guilty of laches which bars his right to recover back the taxes paid. The judgment should be reversed. So ordered.

Gileillan, G. J., absent, on account of sickness; took no part,.

^Opinion published 01 N. W. 45S.)