SHEARHB' 'V. CORBIN.
upon its compliance with the constitution of the state and the statutes, as in other applications for injunctions. A temporary injunction win issue, with leave to the defendants to apply for a dissolution thereof hereafter, to either of the judges of this court.
CORBIN f1. SHEARER.
(Circuit Court, D. Minnesota.
TITLE-PRIMA FACllIl EVIIlENCE-TAX DEED-RECITAL.-In Minne-
sota a tax deed is not primajacie evidence of title, unless it be first shown that the county auditor had authority to make the deed; and a mere recital in such deed that the state auditor directed the sale, will Dot be sufficient. Hadland v. Ben/and, 24 Minn. 372.
Edward Webb, for plaintiff. Charles N. Bell, for defendant. NELSON, D. J. The suit first entitled is an action m ejectment, and to the complaint the defendant interposes a general denial, and also sets up specially, as a further defence, the proceedings which resulted in a sale of the land in controversy to the defendant's grantor for non-payment of taxes, and a tax deed, dated October 6, 1869, from the county auditor of the property claimed as forfeited by law to the state of Minnesota. And as a further defence he alleges that his grantor, one Jaggers, went into possession under the tax deed, and remained in possession of the pl'Operty until 1872, improving the same and paying the taxes thereon. The reply puts in issue the material allegations. In the suit second above entitled the complainant, by a bill in equity, seeks, among other things, to recover for improvements and expenses necessarily incurred in his occupancy of the land. Both suits, by stipulation, are tried to the court, a jury trial being waived in the ejectment suit. The v.3,no.12-45
bill contains sullicient equity to sustain a recovery for taxes paid and illlprovements, and the parties have stipulated as to the amount. The success of the plaintiff in that suit must be determined by the action at law. The plaintiff in the first action must recover, if at all, on the strength of his legal title. The case turns upon the effect of the tax deed to the defendant's grantor. The plaintiff proved his title by patent and successive deeds under it, down to himself, and he is entitled to recover the possession of the property, unless the tax deed, without further preliminary. proof, is prima facie evidence of title in Jaggers. Gen. St., c. 11, § 124, in substance provides that when lands, delinquent for non-payment of taxes, are offered for sale at public auction, "and purchased by any person, - - - shall be struck off to and become forfeited to the state j" and section 137, that at the expiration of two years from the date of forfeiture lands so forfeited and not redeemed become "the absolute property of the state, without further act or ceremony whatever," and were subject to "be disposed of for cash, at public or private sale, as the state auditor might direct j" and section 138, under which the county auditor exeouted the deed to the defendant's grantor, and whioh he olaims vests the title in him, provides that, "upon the sale of any suoh land or lots by the state, the oounty auditor of the county in whioh the lands lie shall exeoute a deed of conveyance thereof to the purohaser, which shall vest in the grantee, his heirs or assigns, a good and valid title in law and equity, and be prima facie evidence thereof in all the oourts of this state." The jurisdiction of the county auditor, or his power to execute "a deed" which should vest "a good and legal title," and be prima facie evidenoe of the same, depends upon a. sale directed by the state auditor. I think the settled authority in this state, under the statute urged by the defendant, and similar legislative enactments, where the facts specially relied on are pleaded, is that the person relying upon the tax deed.as prima facie evidence of title must first pt"ove the county auditor had authority to make the deed;
HERVEY V. I.
and the recital in the deed, that the state auditor directed the sale, is not sufficient. The opinion of the supreme court, (24 Minn. 876,) as I understand it, determines that the statute makes the tax deed prima facie evidence of title upon So sale by the state which is shown by proof (not recitals in the deed itself) to have been directed by the state auditor; and that the deed, which is evidence of a good and valid'title, is declared to be evidence only of such .title after the right to give the deed has been proved. The state claimed the land as forfeited, and it was so entered. The county auditor, until the state auditor directed the land to be sold, had no power to sell to Jaggers; and until the defendant proved the power to sell emanated from the state auditor, the deed executed to Jaggers could not be received as prima facie evidence of title. 24 Minn. 372. If I am right in this conclusion, the plaintiff is entitled to recover.
HERVEY fl. ILLINOIS MIDLAND Rrn..WAY CO.
(Oircuit (/o'lJll't,8· .D. flZinoi..
Motion to Remand.
Bishop tl McKinley, for complainant. Crew tl Ewing, for bondholders and receiver.
C. J. The original bill was filed in the Edgar county circuit court on the'eleventh day of September, 1875. The parties were a stockholder and JudgmeRt creditors of the