(dissenting.) I am constrained to dissent from the views of my brethren expressed in the exhaustive and learned discussion of the questions involved in this case, by the chief justice. I realize fully the ability and force of the reasoning, and the sincerity of the convictions which have led to the conclusions arrived at; but, with due respect, I think the particular sections of the statute rejied upon to give the court jurisdiction are susceptible of a different construction, and one more in conformity with what must have been the underlying purpose and intention of the legislature, notwithstanding the existence of other apparently inconsistent provisions. The result arrived at in the majority opinion is in harmony with previous decisions of this court, and finds much support in the general course of legislation on the subject since the original act of 1874 authorizing judicial proceedings in tax cases. But in previous cases the jurisdictional question had never been fully argued or considered, and its gravity and importance, perhaps, never fully realized, until the rear-gument of this case; nor do I think the court should be prevented from re-examining and reconsidering its former decisions by the application of the rule of stare decisis. The importance of that rule to the stability of property rights and the public interests is not to be undervalued, and courts should be slow to depart from it; but where it is apparent that a wrong rule has been adopted, and that the public interests demand its reversal, the doctrine should not necessarily be held binding .on the court. This court did not hesitate to adopt this course as respects mortgages by pre-emptors. In McCue v. Smith, *309 Minn. 237, (252,) they were held void, and the rule was subsequently followed until, in Jones v. Tainter, 15 Minn. 423, (512,) it was reversed, and such mortgages held valid.
Ample provisions exist in the statute for reimbursing tax purchasers and their assignees, where titles fail; and grantees of such purchasers, taking such titles, would hardly, in the exercise of ordinary prudence, fail to protect themselves by proper covenants, if an enhanced price were paid, because such titles are almost universally regarded with suspicion. Besides, in the case of exempt property, the nature of the title, or the character of the possession, would probably, in the majority of cases, be notice of the fact of exemption. We think no particular hardship need be apprehended from changing the rule adopted in the former decision in respect to exemption and payment, nor is the construction contended for necessary in order to test the validity of the exemption claimed for any class of lands held by corporations or others. The question could be tested equally well in independent proceedings against the officers, or suits against the purchasers, just as was the case before the law of 1874, or as if the legislature had expressly provided that in these proceedings payment and exemption should be jurisdictional. It is no more the auditor’s duty now to place non-delinquent lands upon the list than it was under the statute as formerly existing. In either case it would be wholly unauthorized and contrary to law.
The case, as finally submitted, presents the question in respect to the ground and limits of the jurisdiction conferred upon the court by the statute in tax proceedings. The jurisdictional question is the fundamental one; all others touching the form of the judicial proceedings provided for are subordinate. As respects the enforced collection of taxes, then, does the statute confer upon the court jurisdiction generally over lands returned by the county auditor as delinquent, whether or not so in fact, and, in proceedings against such lands, to conclusively determine the question of delinquency, as well as others, as against all the world ? or is the fact of delinquency the essential condition of jurisdiction, without which, as to any particular parcel, all the proceedings are coram non judice ? The discussion *31will naturally involve (a) the question of the jurisdiction of the court; (b) the remedy, or in what manner the tax judgment may be avoided in the case of non-delinquent lands.
1. In the whole range of judicial inquiry, perhaps, there is no subject which involves more difficult and intricate questions than that •of the jurisdiction of courts. But, as we understand it, if, within ihe general scope of authority conferred upon it, a court is authorized lo exercise its jurisdiction in a class or variety of cases, its decision, after hearing the parties, or an opportunity afforded them to be heard, upon the question whether a case calling for the exercise of jurisdiction exists or not, is protected from attack, except as a remedy may be afforded in the same proceeding, or as may be specially provided by statute. It is enough that the court has general jurisdiction of the subject-matter. Roderigas v. East River Sav. Inst., 76 N. Y. 316. The position of the respondent is that the court in these tax proceedings is given jurisdiction generally, in all cases where the taxes are returned as delinquent by the auditor, to enforce the collection of the same, except in cases where it is made to appear in the same proceeding that they have been paid, or'the lands are exempt; and that the grant of jurisdiction necessarily involves the power to determine the question of delinquency therein, and hence that the final judgment is conclusive upon that point as well as any other; while the contention of the appellant is that the fact of delinquency is the essential precedent condition to the exercise of any jurisdiction by the court over or as against any particular lot of land.
Under the statute, lands subject to taxation are “delinquent” on which the taxes remain unpaid after the first of June each year. The entire question of the j urisdiction of the court, which is a special and limited one, must be determined by an examination of the statute. It can extend only to such subjects, and is to be exercised strictly within such limits, as the statute provides. Eastman v. Linn, 26 Minn. 215, (2 N. W. Rep. 693.) The power to proceed to enforce taxes against property must be upon express authority, and whatever jurisdiction or authority the court has in the premises it takes directly from the statute. Oconto Co. v. Jerrard, 46 Wis. 317, 328.
*32The cases cited by respondent from the courts of other states are of little use in this discussion, because arising under statutes different from our own, and generally authorizing the purchaser at a tax or judicial sale to bring an action or proceeding to quiet his title, or foreclose all equities or claims of the owner, in courts exercising their ordinary jurisdiction in that class of cases. Parker v. Overman, 18 How. 137, and Thomas v. Lawson, 21 How. 331, relied on by respondent, arose under an Arkansas statute which provided a special proceeding by a purchaser of land at a sale by a sheriff or other officer, to quiet or confirm his title. It was a proceeding in chancery in which the court, in the exercise of its ordinary powers, determined questions of title to real estate present within its jurisdiction; and the court expressly say (18 How. 140) that "it is, in substance, a bill of peace.” Wallace v. Brown, 22 Ark. 118, (76 Am. Dec. 421,) is, in reality, an authority in appellant’s favor. The decree was obtained on the chancery side of the court upon default on behalf of the purchaser at a tax sale, and, being regular on its face, was held to be impervious to collateral attack. But it was emphatically declared that previous payment of the tax “vitiated the decree,” and constituted sufficient ground for setting it aside in a direct proceeding.
So, the judgment in tax proceedings under our statute, which is given the effect of a judgment of a court of general jurisdiction, it is claimed, cannot be attacked in a collateral suit like this. But such judgments may, in any event, be assailed in a direct proceeding, on the ground that the auditor’s return of a tax which has been discharged by payment is wholly unauthorized and void. This matter will also be further considered in its order.
Becurring again to the statute, section 105 provides that “taxes assessed upon real property shall be a lien thereon from and including the first day of May in the year in which they are levied, until the same are paid.” Of course, when paid, the land is forever discharged therefrom, and a judgment subsequently entered to enforce the same tax can only be supported on the ground of estoppel, as in the case of other judgments. If delinquency is not the basis or essential fact of jurisdiction, and the question of payment is to be litigated and adju-cated in the same proceeding, then the final judgment is conclusive *33of that fact, as well as others, and the remedy is by review only. If it is jurisdictional, like the essential fact of service of process in personal actions, then the judgment, as in the latter class of cases, may be attacked directly by motion or action for want of jurisdiction, or on the ground of fraud or mistake, if not collaterally, under section 85 of the same chapter. Section 56 requires the county treasurer to give receipts to persons paying taxes, and to make a duplicate record thereof, to be filed with the auditor. By section 69 unpaid taxes become delinquent on the first day of June, each year. The treasurer is directed to return the tax-lists to the auditor, to compare the same with the duplicate receipts on file with him, and to make the proper correction upon the record, so as to make it conform to the truth. And it is also further provided that “each tract or lot of real property against which the taxes remain unpaid shall be deemed delinquent,” and thereupon a penalty of 10 per cent, is immediately added. Section 70 directs the auditor to file in the office of the clerk of the district court for the county “a list of the delinquent taxes upon real estate within his county, which list shall contain a description of each piece or parcel of land on which such taxes shall be so delinquent, * * * and shall verify such list by his affidavit that the same is a correct list of taxes delinquent, for the year or years therein appearing, upon real estate in said county.”
The filing of the list is the initiation of the proceedings in rem in the district court against the lands therein described. Back of it, however, is the jurisdictional fact, lying at the foundation of the proceedings, that the taxes are unpaid, and the land delinquent. The statute contemplates an accurate return, and the list, properly verified, will, primarily, be presumed to be correct. The object of the judicial proceedings is not to try the fact whether the auditor has made a correct list, but to enforce the collection of unpaid taxes, and to determine the sufficiency of any objections that may be made, by answer, to the collection of such taxes, by reason of substantial omissions or irregularities which render such unpaid' taxes (not the proceeding) void. The making of this record is no part of the judicial proceedings. But the court takes up the case upon the failure of the county officers to make collection just at the point where, under the *34previous statute, they (the auditor and treasurer) proceeded to advertise and sell, (Gen. St. 1866, c. 11, §§ 117-119 et seq.;) delinquency in each ease being the basis of the proceedings.
Care must be exercised to distinguish between the jurisdictional fact of delinquency (the actual existence or continuance of the lien of the state) and the assertion or evidence of it as shown by the list, and also the assertion of a claim of indebtedness to the state, such as, in a personal action, might be adjudged conclusive upon default. It is obviously the object of the statute, in its present form, at least, that land's actually delinquent, and none others, should be the subject of these proceedings. Delinquency is assumed through all the proceedings, and hence the court proceeds accordingly against each parcel of land on the list, but the actual validity of the judgment will depend upon the ultimate fact. In brief, it is the/acf of delinquency that gives the court jurisdiction, and the verified list or return is the evidence of it upon which the court acts as the basis of its qiroceedings. As to the subject-matter, the jurisdiction of the court, therefore, is the same as that previously exercised by the county officers, and is no more extensive. It would be singular, indeed, if the legislature had intended to make it greater.
In St. Anthony Falls Water-Power Co. v. Greely, 11 Minn. 225, (321,) it was held where a city clerk was by special statute directed to make and return to the county auditor a list of unpaid and delinquent taxes, with the lands on which taxes remained due and unpaid on the first day of April, 1864, properly certified by himself and the mayor to be a correct list of unpaid and delinquent taxes, that taxes which, though unpaid, had never been duly demanded as required by the city charter, and which fact was proved outside the records, were not within the purview of the act, and were improperly returned to the auditor, and, of course, gave him no authority to sell. The record, it was held, did not conclude a party in opposition to the fact, nor did the statute making the deed conclusive after one year. The proceedings, it is true, were not judicial, but the ease is an authority on the subject of the extent of jurisdiction conferred by this act. So, lands not delinquent cannot lawfully be included in the auditor’s return, and are not necessarily bound irrevocably by the proceedings. *35But the auditor’s return becomes a record in the proceeding. It is the proof upon which the court acts; just as in personal actions it is the fact of service that is jurisdictional, but the proof of it upon which the court proceeds; and if the affidavits of service, whether personal or by publication, are untrue, and there is no jurisdiction in fact, the defendant is not remediless, but the judgment may be summarily set aside, on his motion upon a proper showing. Covert v. Clark, 23 Minn. 539; Johnson v. Coleman, 23 Wis. 452. See Stocking v. Hanson, (post, p. 207;) Heffner v. Gunz, 29 Minn. 108, (12 N. W. Rep. 342;) Fiske v. Anderson, 33 Barb. 71.
The subject of probate jurisdiction will afford a familiar illustration in this case. Probate courts are given jurisdiction, not over estates generally, but over the estates of deceased persons. Should administration be granted upon the estate of a person living, the proceedings would be set aside or held invalid, on his application, for want of jurisdiction, however complete the record might be. Stevenson v. Superior Court, 62 Cal. 60, and cases.
It is, however, argued that by the language of section 69, viz., “the property remaining on the list shall be deemed delinquent,” the legislature intended that the return, or the lands therein, should constitute the subject-matter of the jurisdiction of the court, without respect to the facts of the case lying behind it; that “the filing of the list is the commencement of an action against lands thereby alleged or claimed to be delinquent, for taxes alleged to be due, and that the state tenders to all the world the issue of delinquency.” To this we are unable to agree. Similar language to that referred to is used in section 73, viz.: “When the last publication shall have been made, the notice shall be deemed to have been served, and the court to have acquired jurisdiction,” etc. The notice will only be deemed finally to have been lawfully served, and the court to have obtained jurisdiction to proceed further, in case the provisions of law in respect to publication are complied with, as, for example, that a newspaper be properly designated. Eastman v. Linn, 26 Minn. 215, (2 N. W. Rep. 693.) So taking the record to be correct, and acting on the presumption that the officers have discharged their duty, the taxes disclosed by the record are “deemed delinquent.”
*36Nor is the issue of delinquency tendered by the state in the action, or conclusively adjudicated upon default of any appearance of the land-owner. Considered as a complaint, the list tenders no such issue. It is assumed that the jurisdictional fact of delinquency must exist when the complaint is filed, and in this connection we may add that the state is bound by the notice of the fact of payment to its officers. It is foreign to its purpose in authorizing the tax proceedings, and a fraud upon the tax-payer, to proceed to collect and enforce taxes which have been paid. As these proceedings profess to relate only to delinquent taxes, a man who has paid his taxes is not bound to take notice of them. The law should therefore afford him relief against a judgment therein, notwithstanding the provisions allowing parties to come in and answer. Breisch v. Coxe, 81 Pa. St. 336, 348; Wallace v. Brown, supra. In proceedings in rem, — and these are confessedly such, — “jurisdiction over the subject-matter is a condition precedent to the acquisition of authority over the parties.” Fr6em. Judgm. § 119. There must not only be notice to the parties which may be construed as affording an opportunity to appear and contest, but the case must be within the class over which the court is given jurisdiction. Failure to appear and answer pursuant to a published notice could not confer jurisdiction over the subject-matter. The expiration of the time to answer does not affect the question of such jurisdiction. Delinquency is a matter of jurisdiction, and not strictly matter of defence merely.
If, as respondent contends, delinquency was one of the issues tendered by the state, then, of course, the land-owner would be expected to answer in pursuance of the general notice, and it would appear singular and altogether unnecessary that the legislature should have aided the special clause at the end of section 79 permitting the de-fences of payment and exemption. When filed, the list is made, by section 79, prima facie evidence that all the provisions of law in relation to the assessment and levy of taxes have been complied with. This is the issue, and these are the matters confessed hy failure to appear. As before indicated, there is a separate provision for raising an issue of payment. This adds nothing to the grant of jurisdiction previously made. Parties who are not in default are not bound to watch *37tax proceedings, and interpose answers setting np defences going to the jurisdiction over the subject-matter; but it is a wise provision of the statute to allow it as a summary way to clear the record where parties ascertain that their lands are wrongfully proceeded against. Where, however, a party appears and answers under this clause, setting up the special plea of payment, a finding upon the issue in his favor would only amount to a determination, in substance, that the court was without jurisdiction, and that there is no subject-matter to deal with. The mere form of the judgment, or manner of raising the objection, is not material. A jurisdictional fact in respect to the subject-matter, not apparent upon the record, may be raised and disposed of upon an answer as well as by motion. If such separate and preliminary issue were determined against the special plea, the result would be to confirm the validity of the return, and leave the court to proceed to adjudicate other questions as to the validity of an existing unpaid tax. But the result of the determination of that particular issue would not bind any one, or the interests of any one in the land, except the party appearing. Waples, Proc. in Piem. §§ 580, 581; Cooper v. Reynolds, 10 Wall. 308, 318; Belleville Nail Co. v. People, 98 Ill. 399. Because parties may thus come in, it does not follow that the question of delinquency is determined against them in the proceeding in default of an answer. The question remains un-adjudicated, except that the presumption of verity attaches to the auditor’s return as a part of the record, until it is impeached.
Under the former tax system it was specially provided that if the taxes charged on any lot of land were regularly paid, and such land erroneously returned delinquent, and sold, the sale was void. Gen. St. 1866, c. 11, § 62. But this was only declaratory of the rule already existing. Payment of the tax necessarily extinguishes the statutory power to sell. Cooley on Taxation, (2d Ed.) 450. So in these proceedings we think the fact of previous payment ought to be held to deprive the court of jurisdiction to proceed, and the only remaining question is the method of relief against a judgment which, if regular on its face, and based upon a properly verified return as evidence of jurisdiction, imports verity.
*382. We have already suggested that the judgment is subject to be attacked by direct proceedings; as (a) by motion upon a summary application, particularly in clear cases, as where the party holds an unchallenged tax-receipt; or (b) by the proper action. Manufacturers’, etc., Bank v. Boyd, 3 Denio, 257; Johnson v. Coleman, supra; Freem. Judgm. §§ 489, 495. But the court is agreed that the provisions of section 76, as amended, providing that “the same presumption in favor of the regularity and validity of said judgment shall be deemed to exist as in respect to judgments in civil actions in said court,” are to be construed in connection with, and are limited by, the provisions of section 85, under which the presumption of title in the purchaser raised by the tax certificate may be overcome by proving that the court had no jurisdiction to render the judgment; and this may be shown by evidence outside the record of the judicial proceedings. Eastman v. Linn, 26 Minn. 215, (2 N. W. Rep. 693.)
The three-years limitation in the same section is inapplicable to the ease of a judgment void for want of jurisdiction of the subject-matter. Whenever it is made to appear that lands condemned for the non-payment of taxes are not in fact delinquent, a case is disclosed which is not within the statute authorizing a judgment and sale, and is not included within the class of cases to which the limitation clause is applicable. As to such lands the judgment is void, and may be set aside. In the case of exempt property there is want of authority, ab initio, to levy taxes. Where the tax is paid, and the lien of the state discharged, there is thereafter an entire absence of authority to proceed further. Referring to such cases, the court, (Ryan, C. J.,) in Oconto Co. v. Jerrard, 46 Wis. 317, 328, say: “There is nothing for the statute of limitations to act upon,” and, as respects the application of such a limitation law, distinguish between cases of the character just referred to and cases where the taxes are in themselves a just and equitable claim or charge against the land, but which may, if objected to seasonably, be adjudged void in consequence of irregularities or omissions in the course of the proceedings.
In Breisch v. Coxe, 81 Pa. St. 336, 348, it was held that payment of taxes took away all authority to make a subsequent sale therefor, *39and that the owner was not required to take notice of the subsequent proceedings; that be could not be implicated in the consequence of an act where there is no power to bind him, “and that the owner is not bound to presume a sale, and follow up its consequences, within the five-years” limitation named in the statute.
But the right of the land-owner to be relieved from a tax judgment void because the land was previously discharged from the taxes may be placed upon the broad ground that, if he has fulfilled all his duty to the state, nothing which its agents, the county officers, can do without his consent can deprive him of his legal rights or remedies, or subordinate his equities to that of the tax purchaser. Cooley on Taxation, (2d Ed.) 553. Whether, in any particular case, his rights might be affected by undue delay after actual notice, as against subsequent purchasers in good faith, involves the application of principles and the discussion of questions not necessary to be considered in this case.
I think, the complaint ought to be held sufficient, and the order sustaining the demurrer reversed.