Alexander v. Shaffer

• Decision Date: 04 January 1894
• Citation: 38 Neb. 812,57 N.W. 541
• Parties: ALEXANDER v. SHAFFER.
• Court: Nebraska Supreme Court

38 Neb. 812

57 N.W. 541

ALEXANDER

v.SHAFFER.

Supreme Court of Nebraska.

Jan. 4, 1894.

Syllabus by the Court.

1. A. brought suit against B. and others to foreclose tax liens. B., in 1891, answered, averring that she had purchased portions of the premises in controversy in 1870 and in 1871 for taxes, the last payment being made in 1874, and asking that her title, interest, and claim be decreed superior to A.'s. Held, first, that, treating the answer as setting up title in B. under the tax sales and deeds issued thereunder, it failed to state any defense against A.'s petition to foreclose liens for subsequent taxes; and, second, viewed as an assertion of tax liens, they appeared on the face of the answer to be barred by the statute of limitations.

2. An action to foreclose tax liens must be brought within five years after the expiration of the time to redeem. Helphrey v. Redick, 31 N. W. 256, 21 Neb. 80;D'Gette v. Sheldon, 44 N. W. 30, 27 Neb. 829;Warren v. Demary, 50 N. W. 15, 33 Neb. 327,--followed.

3. When land has been sold for taxes, and a suit to foreclose the lien therefor is not instituted within five years from the expiration of the time to redeem, the lien is extinguished, and ceases to be a charge upon the land. The statute in that respect does not merely operate to defeat the remedy, but limits the duration of the lien itself.

4. The holder of tax certificates, whose lien is barred by the statute of limitations, has no equity, as against the holder of subsequent tax liens, whereby he can require such subsequent lienor to discharge the barred liens, or admit their priority as a condition for foreclosing his own.

Error to district court, Cass county; Chapman, Judge.

Action by William H. Shaffer against Art E. Alexander and others to foreclose a tax lien. There was decree for plaintiff by default, and from a judgment refusing to vacate the decree defendant Alexander brings error. Affirmed.S. P. Vanatta, for plaintiff in error.

Beeson & Root, for defendant in error.

IRVINE, C.

Shaffer, the defendant in error, brought a suit in the district court of Cass county against the unknown heirs of Joseph Throckmorton, the plaintiff in error, Art E. Alexander, and others, the object of which was to foreclose tax liens upon certain property in that county. The petition alleged, as to a portion of the property covered by plaintiff's lien, that Art E. Alexander claimed to have some lien on or title to the same, but averred that such title or lien was junior to that of the plaintiff. Alexander made default, and a decree was rendered in accordance with the prayer of the petition, fixing the plaintiff's lien, and finding that the plaintiff in error had no lien upon the premises. The taxes for which the plaintiff below claimed a lien were taxes for 1885 and subsequent years, and were paid at different periods between 1886 and 1890. The suit was begun September, 1890. Upon the 9th of February, 1891, the plaintiff in error filed a petition to set aside the decree, and for leave to answer. A demurrer was filed to this petition, which was overruled, and the decree vacated so far as to allow the plaintiff in error to answer, setting forth her claim. An answer was then filed by the plaintiff in error, alleging that she claimed an interest in certain of the property described in the original petition; that a portion of such property she purchased September 4, 1871, at tax sale for the taxes of 1870; and that a portion she purchased at tax sale September 6, 1870, for the taxes of 1869; and that she had paid subsequent taxes on this property, the last payment being made May 1, 1874. The different taxes and dates of payment are set out at large in the answer. The answer further alleged that August 5, 1873, a tax deed was made for the lot sold in 1871, and that on May 8, 1874, a deed was made for the lot sold in 1870. The answer then averred that her title and claim was superior to that of Shaffer, and that Shaffer bought with notice of her interest. There was a prayer that her “title, interest, and claim” be decreed superior to that of Shaffer, and for general relief. A demurrer was filed to this answer, which was sustained, and judgment entered accordingly.From this judgment error is prosecuted.

The answer lacks much in certainty, but, however it may be construed, the judgment of the district court is right. If it is to be taken as pleading title in the plaintiff in error under her tax deeds issued in 1873 and 1874, it failed entirely to present a defense to plaintiff's petition, for the reason that it made no denial of the facts set out in the petition establishing a subsequent lien for taxes, and notwithstanding the answer the plaintiff on his petition would still be entitled to the relief granted him in the original decree. If, on the other hand, the answer be construed as setting up a tax lien superior to that of Shaffer, it is still fatally defective. The answer shows on its face that the last payment of taxes was made in 1874, more than five years before the original action was begun, to say nothing of the time of filing the answer. The time of redemption expired as to part of the property in 1872, and as to the rest in 1873. An...