Carly v. Boner

• Decision Date: 08 March 1905
• Citation: 102 N.W. 761,70 Neb. 674
• Parties: F. B. CARLY v. FRANCIS M. BONER ET AL., APPELLEES. BENJAMIN F. PITMAN, APPELLANT
• Court: Nebraska Supreme Court

102 N.W. 761

70 Neb. 674

F. B. CARLY v. FRANCIS M. BONER ET AL., APPELLEES. BENJAMIN F. PITMAN, APPELLANT

Supreme Court of Nebraska

March 8, 1905

Reversed.

OPINION

HOLCOMB, C. J.

This action is pending in this court on appeal. The only question in controversy is with reference to the right of redemption of certain real property sold under a decree duly rendered in a proceeding begun in the district court for the purpose of foreclosing a tax lien existing on and against certain real estate, and directing a sale thereof for the satisfaction of the lien thus established.

After a sale of the land under and in pursuance of the decree rendered in the foreclosure proceedings, and pending an appeal from an order of the district court confirming the sale and directing the sheriff to execute a deed to the purchaser, the owner of the equity of redemption or his grantee asked to be allowed to redeem the property from the decree and sale rendered and made, as above stated. This application to be allowed to redeem was resisted by the appellant in this action, who claims an interest in the property as an assignee of a mortgagee, who was made a party defendant in the tax foreclosure proceedings and served by publication, but who failed to appear or plead in the action and whose default was duly entered of record. The appeal was thereupon dismissed and the cause remanded to the district court, so that redemption from the decree and sale might be effectuated. In the district court it was held that the appellee had effected a redemption of the land from the decree and the sale had thereunder, and it was adjudged that he took the land free from the lien created by the mortgage executed by the owners of the land in favor of the appellant's assignor, a party defendant in the foreclosure proceedings as aforesaid. This decree was on a former hearing reversed. Carly v. Boner, ante, p 671.

1. Some confusion apparently has arisen in respect of an interlocutory order or memorandum opinion entered by this court in the appeal proceedings from the order of confirmation of sale under the tax foreclosure decree, with reference to the question of the right of redemption. When application to redeem was made in this court during the pendency of the appeal proceedings and objections interposed it was announced that the owner of the equity of redemption (or his grantee) had the right to redeem the property from the decree and sale thereunder; and this whether the tax lien was owned by the tax purchaser or had been transferred to the mortgagee or her assignee. It was further found that the mortgagee or her assignee was...