Pettit v. Black , 8 Neb. 52 ( 1878 )

Cobb, J.

H. H. Pettit sued John Black in tbe district court of Cass county in an action quia timet for tbe purpose of clearing off and having declared void certain tax deeds made by tbe treasurer of Cass county to tbe said John Black, conveying to him certain real estate of tbe said plaintiff, situate in Cass county. Plaintiff in bis petition sets up tbe title and possession of tbe lands in himself; charges fraud and confederation against tbe defendant, tbe county treasurer, and others in tbe sale and conveyance of tbe lairds; charges that tbe said sale and conveyance were void on account of certain alleged irregularities, and particularly that during all of tbe years 1870, 1871, and 1872, tbe years in which tbe taxes for which said lands were sold became delinquent, tbe said plaintiff resided on tbe said lands with bis family, and owned and bad in bis possession on said real estate sufficient personal property out of which tbe said treasurer could have made said taxes by seizure and sale, but that said treasurer made no attempt or effort to collect said taxes out of said personal property.

Tbe defendant by bis answer denied tbe ownership of plaintiff in the real estate, denied that said plaintiff was the owner or possessor of personal property out of which the said taxes could have been collected by seizure and sale; denied all confederation and illegality in said sale or conveyance, and affirmatively set up each succeeding necessary step from the listing of said lands for taxes to the recording of the treasurer’s deeds; and also set up that he had paid the taxes on said lands for all subsequent years, to-wit: 1872, 3, 4, 5, and 6; and while he claimed the title to said real estate by virtue of the said sale and conveyance, he also claimed and prayed the court to decree, in case his said title to said real estate, acquired at said treasurer’s sale, and the deeds made in pursuance thereof, should fail and be adjudged by the court to be -invalid, that his lien for the purchase money and subsequent taxes paid on said lands, with the interest thereon at the rate of forty per centum per annum from the respective dates when paid until the same is fully paid as provided by law, be foreclosed in this.cause against said land, etc.

The district court found the undivided one-third and no more of the said real estate to be in the plaintiff. That at the time the taxes for the several years, for which said premises were sold, became payable, and subsequently until the date of sale,-the plaintiff owned and had in his possession on the said premises, in said county, sufficient personal property out of which the said taxes could have been made by distress and sale ol personal property, but that no attempt was made, etc., and entered a decree cancelling and setting aside the said tax deeds of the defendant as to the undivided one-third part of the said premises and no more. From which decree the cause is brought to this court by appeal.

Several questions are raised by the testimony touching the title to the real estate in question, which we do not deem it necessary to pass upon. The proof shows that the plaintiff had been in possession of said premises for a period of fifteen years next before the commencement of this suit, and the only question of general title which could be raised is between the plaintiff and his wife. - "While she does not join in this action as a party plaintiff, she will be presumed to have acquiesced in the same as being brought for her benefit as well as that of her husband. The title of the plaintiff is good to the whole of said real estate as against the defendant, and for the purposes of this action.

The lands were sold for the taxes of 1869, 1870, and 1871, but were sold for the taxes of all these years at the same time, to-wit: September 6,1872; hence the sales all come under the provisions of the act of June 6, 1871 (Gen. Stat., sec. 50, p. 916). Under the provisions of that act it was the duty of the county treasurer, before advertising or selling the real estate, to have seized the personal property of the plaintiff, and made said tax out of it by sale, and his power to proceed against the land itself was dependent upon his having first. exhausted a reasonable effort to find personal property, if plaintiff possessed any in the county. The proof is ample that during all the time, from the date of listing the property for the tax of 1869 to the day of sale, the plaintiff owned and had in his possession on the said premises an abundance of personal property out of which the taxes could have been made by distress and sale, and that no attempt or effort in that direction was made by the county treasurer. Following the well considered case of Johnson v. Hahn, 4 Neb., 139, we are obliged to hold the sale of the real estate in question void.

The defendant’s answer, or the greater part of it, is in the nature of a cross bill for foreclosure of his lien upon said real estate for the money paid at the said sale, and for subsequent taxes, claiming interest on each sum at forty per cent per annum.

The act of June 6,1871, provides that: “Whenever the title acquired by a purchaser of real estate at treasurer’s sale shall fail, the purchaser at such sale, or his heirs or assigns, , shall have a lien on the real estate so purchased for the full amount of such purchase money, together with interest thereon from the date of such purchase at the rate of forty per cent per annum until the same is fully paid, and such purchaser, his heirs, or assigns, may pay all taxes lawfully assessed on such real estate after such purchase, and when the said title shall fail, may have a lien for all such taxes, together with interest thereon from the time of payment at the rate aforesaid,” etc. [Gen. Stat., Sec. (118), p. 936.]

By virtue of the assessment and levy of the taxes the county had a lien upon the land therefor; the taxes became delinquent and commenced to draw interest at the rate of one per cent per month on the first day of May of the year following that on which the said taxes were levied respectively.

The statute provides that upon the sale of such lands for such taxes at the time and in the manner, and after giving the notice provided therein, the purchaser shall receive a certificate entitling him to a deed for such lands at the expiration of two years from the date of such sale unless the same be sooner redeemed, etc., and also provides that the owner or occupants of any land sold for taxes, or any other person, may redeem the same at any time within two years after the day of such sale by paying the county treasurer, for the use of such purchaser, his heirs or assigns, the sum mentioned in his certificate, with interest thereon at the rate of forty per cent per annum from the date of purchase, together with all other taxes subsequently paid, etc. (Gen. Stat., Sec. 64, p. 922.)

It will be seen that very important consequences are attached to the proceeding called a sale. It immediately raises the rate of interest from twelve to forty per centum per annum. This is a pretty serious consequence to be wrought by the lapse of a few moments time, and the almost silent act of sale by the county treasurer. The law nowhere ascribes this consequence to the mere lapse of time; but if for any reason there is no sale, as is sometimes the case for years, the rate of interest remains one per cent per month.

In this case there is evidence that the county treasurer went through the forms of a sale of these lands, but that he did so in the absence of certain conditions precedent which, according to the decisions of this court in the case above referred to, were not only necessary to the validity of such sale, but the absence of which render such sale absolutely void. In other words, render such proceedings, no sale. The legal definition of the word void according to Webster is, “ of no legal force or effect whatsoever; null and incapable of confirmation or ratification.” Pettit was no party to these proceedings^ To him they have no existence; to him his lands stand assessed for taxes, taxes levied upon them delinquent and drawing interest at the rate of one per cent per month.

As between John Black and the county of Cass, the case is different. The county was possessed of a lien upon the lands of Pettit for taxes; the county treasurer, acting in a capacity quite analogous to that of agent of the county, sold the lands to Black. Now while this sale was inoperative to pass even an inchoate title to the lands, yet, together with the receipt and retention of the money from Black, it was sufficient as the foundation for the ratification by the'county of the sale and transfer of its lien for these taxes to him. It will be presumed that the county treasurer paid the money received from Black into the county treasury, and that the county, having retained the same for several years, has ratified the acts of her officer in respect to the same. Black will therefore be subrogated to all the rights of the county in the premises. And while we are not called upon in this case to express any opinion as to whether he has any claims on the county for the differ-' ence between twelve and forty per cent interest on the money paid by him, yet it must be obvious that no reason or principle stands in the way of Pettit redeeming his land by paying the taxes and interest thereon at the same rate as before these void proceedings.

In the case of Peet v. O’Brien, 5 Nebraska, 360, this court held that “the title acquired by a purchaser at tax sale might be said to fail when it should be pronounced invalid by the judgment or decree of a court of competent jurisdiction over the subject matter, and that an action to foreclose such lien cannot be maintained until the expiration of the time limited by law to redeem nor until there is a failure of the title acquired by the purchaser under the law. Until both these events occur the court has no jurisdiction in an action of foreclosure.” But in this case the action having been brought by Pettit for the purpose of having the tax deeds declared null and void and the cloud which they cast on his title removed,, and the court having taken jurisdiction of the case for that purpose, will, upon farriiliar principles of equity practice, retain it for the purpose of foreclosing and enforcing the lien on the lands for the taxes and interest and of administering full justice between the parties as to all matters embraced in or necessarily connected with the ease.

The decree of the district court will be reversed and a decree entered in this court in conformity with this opinion.

Decree accordingly.