Clarence v. Cunningham
| Decision Date | 28 March 1910 |
| Docket Number | No. 15,940.,15,940. |
| Citation | 86 Neb. 434,125 N.W. 597 |
| Parties | CLARENCE ET AL. v. CUNNINGHAM ET AL. |
| Court | Nebraska Supreme Court |
In a personal action to foreclose a tax lien against the owner of the fee, who is a resident of the state upon whom personal service can be made within the state, service by publication only is void.
When a decree foreclosing a tax lien is set aside as void for want of service, the owner of the fee should be allowed to redeem from the tax liens as though no such decree had been entered.
Appeal from District Court, Chase County; Orr, Judge.
Action by Harvey J. Clarence and others against Alonzo Cunningham and others. Judgment for plaintiffs, and defendants appeal. Affirmed.
C. W. Meeker and P. W. Scott, for appellants.
John C. Watson, for appellees.
The Western Land Company purchased the land involved in this suit at the treasurer's tax sale, and afterwards began an action in the district court of Chase county to foreclose the lien. Henry Clarence, who was then the owner of the land, and his wife, were made defendants, and also the county of Chase. The county filed a cross-petition setting up its lien for subsequent taxes, and such proceedings were had in the action that in April, 1900, a decree was entered foreclosing the tax lien of the plaintiff in that action and of the defendant, the county of Chase. A sale was had on this decree, and the defendants claim under that sale. The plaintiffs are the heirs of the said Henry Clarence, and brought this action to redeem from the said sale. It was conceded that Henry Clarence, at the time the said foreclosure proceedings were brought, was a resident of this state, and that no service was made upon him except service by publication. On the trial of the case the district court held that this service was void. This holding was right, under the well-established rule in this state. Humphrey v. Hays, 85 Neb. 239, 122 N. W. 987;Herman v. Barth, 124 N. W. 135, and cases cited. The court entered a decree allowing the plaintiffs to redeem upon the payment of the amount paid by the Western Land Company to the county treasurer at the tax sale, and the subsequent taxes paid by the Western Land Company and Alonzo Cunningham, who was the purchaser at the foreclosure sale, and subsequent taxes paid by those claiming under him, together with interest on the sums so paid at 12 per cent. per annum.
It is contended by the defendants that the court should require the plaintiffs to pay the amount of the purchase price paid under the foreclosure proceedings, together...
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