DocketNumber: No. 18,028
Citation Numbers: 94 Neb. 431
Judges: Barnes, Letton, Rose, Sedgwick
Filed Date: 10/17/1913
Status: Precedential
Modified Date: 7/20/2022
This is an appeal from a judgment of the district court for Douglas county, confirming a sale of lot 2, block 458, Grandview addition to the city of Omaha, for delinquent taxes, under a decree in a scavenger foreclosure suit.
It appears that the action in which the decree was rendered was commenced in 1904, and on the 21st day of September of that year a default decree was entered. On
It is argued that the court had no jurisdiction to render the decree of August 4,1909, and therefore it was error to confirm the sale. We think this contention cannot be sustained. The statute under which these proceedings were prosecuted (laws 1903, ch 75), among other things, provides, in substance, that the state tax suit may be instituted against all lots and parcels of land against which there are unpaid delinquent taxes. The proceedings up to the time of the confirmation of the sale are summary in their nature, and no provisions are made for setting aside the sale, or attacking it in any manner, until confirmation is asked for. At that time interested persons may interpose their objections, as was done in this case. Prudential Real Estate Co. v. Battelle, 90 Neb. 549.
In State v. Several Parcels of Land, 81 Neb. 770, it was held: “Where taxes which are void and illegal are included in a default decree rendered under the provisions of article IX, ch. 77, Comp. St. 1907, commonly known as the ‘Scavenger Law,’ and the attention of the court is
In the case of State v. Several Parcels of Land, 75 Neb. 538, the question before this court was the right of an owner to open the default decree and defend the action because he had not had notice of the commencement or pend-ency of the suit, and the court held that the provisions of the statute granting the landowner the right to object to the confirmation of sale, and define the ground of objection, afforded him an opportunity to have the question of the validity of the taxes determined before he is deprived of the property; but lie may be required to wait until confirmation is applied for to litigate that question. The court refused to open the default upon the ground that the question of the validity of the taxes might be determined upon the application to confirm the sale.
The state of Illinois enacted a scavenger law at an early day, and several other states have adopted similar legislation. Our statutes seem to have been largely taken from that of Minnesota. But as the Minnesota statutes contain no provision for the confirmation of sales, the construction placed upon it is of no assistance to us, except as indicating how our statutes should be construed had the provisions contained in sections 38 and 39 been omitted therefrom. It is probable that these sections were adopted in order to give the owner the rights which are secured to him in administrative sales for taxes by section 3, art. IX of the constitution.
In State v. Several Parcels of Land, 81 Neb. 770, it was said: “It is urged that the proceedings prescribed by the statute are judicial in their nature, and that the decree rendered in pursuance of section 11, supra, is final and conclusive, and that it is inconsistent with this view to say that such decree may be opened up or assailed on confirmation. It is a canon of construction that an interpretation which gives effect to all parts of the statute' should be sought for, and, if possible, adopted. In this
In Prudential Real Estate Co. v. Ball, 79 Neb. 805, it was said : “The decree, as affecting the tract involved, was by default, and by it the owner was not deprived of the legal right to have the validity’of the taxes determined prior to the confirmation of the sale.” On the rehearing in that case (79 Neb. 808) it was said: “The statute pursuant to which this proceeding is had requires of the court the exercise, so far as may be, of the powers of a chancellor in foreclosure cases. It is not doubted that in such cases the court is the vendor, or that he may reject any bid which for any reason appears to him to he inadequate, or that, while the proceeding remains within his jurisdiction, he may vacate any erroneous or improvident order he may have made during its progress. The statute in question does not express an intent either to enlarge or restrict, or in any way to affect, the exercise of this power, which has heretofore been regarded as inherent in a court of equity, and of which it may be doubted that the legislature has the power to deprive it.” It may be said that by the application to set aside the confirmation the owner submitted to the jurisdiction of the court. In State v. Several Parcels of Land, 75 Neb. 538, it was said: “(1) A person against whose property a default decree upon constructive service has been rendered in a
From an examination of the scavenger tax law and the foregoing decisions, we conclude that the district court lias jurisdiction to set aside and correct a default decree, and enter a corrected decree in its place, under which a confirmation of the tax sale may be had.
Finally, it is■ contended, that the owner had the right to pay the tax assessed against his lot, regardless of the scavenger tax suit and the decree in question, by paying the amount of the tax, with the interest thereon at the rate provided for by the general tax laws. It appears that on the 28th day of November, 1911, the owner tendered to the treasurer of the city of Omaha, the amount of the taxes in question, together with 10 per cent, interest, and $1 as a docket fee, and such payment was refused because of the pendency of the scavenger tax foreclosure suit. The defendant has kept that tender good. By this he seeks to avoid the payment of interest, as provided by the scavenger tax law, upon the decree rendered on the 4th day of August, 1909. Having held that the decree was not void, it follows that the tender in question was insufficient in amount. The owner could only redeem from the decree by paying the same, together with the interest due thereon according to the provisions of the scavenger tax law.
It follows-that the judgment of the district court was right, and it is therefore
Affirmed.