Commercial Savings & Loan Association v. Pyramid Realty Company
| Decision Date | 02 July 1931 |
| Docket Number | 27669 |
| Parties | COMMERCIAL SAVINGS & LOAN ASSOCIATION ET AL., APPELLANTS, v. PYRAMID REALTY COMPANY, CROSS-APPELLANT: CHARLES B. MCDONALD ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIAM G HASTINGS, JUDGE. Affirmed in part, and reversed in part, and dismissed.
Affirmed in part, reversed in part, and action dismissed.
Syllabus by the Court.
Section 77-2039, Comp. St. 1929, giving counties right to foreclose lien for all delinquent taxes, examined, discussed, and found to be constitutional.
The substituting of an entire new act, complete in itself, by amendment, when the contents are germane to the original act is not a violation of section 14, art. 3 of the Constitution, which requires that the new act set out sections amended.
The provision for a two-year period reserved to the owner and persons interested in redemptions from sales of land for taxes, in section 3, art. 8 of the Constitution, is satisfied by an elapse of two years after sale before tax deed issue, or by a stay of two years after a judicial sale in foreclosure of tax lien under section 77-2039, Comp. St. 1929, before confirmation and the issuance of the sheriff's deed.
Personal notice required in sale of land for taxes, as provided in section 3, art. 8 of the Con stitution, applies in all cases where a tax deed is sought, but is not required in sales under tax foreclosures in section 77-2039, Comp. St. 1929.
The owner or person in interest is allowed to redeem from a foreclosure of tax lien by the county under section 77-2039, Comp. St. 1929, by paying full amount of taxes due, with 10 per cent. interest. He has no right in law or in equity to redeem by paying only the amount of the bid. He is required to pay the full taxes assessed against such real estate by section 4, art. 8 of the Constitution.
Appeal from District Court, Douglas County; Hastings, Judge.
Suit by the Commercial Savings & Loan Association and another against the Pyramid Realty Company and others. From the judgment, both parties appeal.
Affirmed in part and reversed in part, and action dismissed.
A. H. Murdock, for appellants.
Henry J. Beal, Dan J. Gross and H. C. Schoening, for appellees.
O'Sullivan & Southard and Arthur J. Whalen, for Pyramid Realty Company.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.
This was an action in equity brought by the Commercial Savings & Loan Association and John McKiernan, plaintiffs and appellants, to redeem lot 10, block 3, Mahoney & Minnehan's First Addition to the city of Omaha, from a sale of the same pursuant to a special and independent action brought by the county for the foreclosure of the tax lien, not a tax certificate, held thereon by the county of Douglas in accordance with section 77-2039, Comp. St. 1929, and to enjoin the appellees, Charles B. McDonald, sheriff of Douglas county, Otto J. Bauman, county treasurer of Douglas county, Henry J. Beal, county attorney of Douglas county, and Robert Smith, clerk of the district court, from attempting to enforce the lien entered pursuant to a decree in the foreclosure proceedings brought by the county of Douglas foreclosing and selling said property for the taxes levied against it.
To the amended petition the Pyramid Realty Company demurred for the reason that said amended petition did not state facts sufficient to constitute a cause of action against said defendant, and the county of Douglas, for and on behalf of its officers named above, filed a demurrer upon the same ground.
The district judge overruled the demurrer of the Pyramid Realty Company, but sustained the joint demurrer filed for the Douglas county officers and dismissed the amended petition. Exceptions were duly entered to both rulings. The plaintiffs, as appellants, and also the Pyramid Realty Company, as defendant and cross-appellant, have each appealed.
The transcript consists only of the amended petition, the two demurrers filed thereto, the decree entered, the notice of appeal, the two supersedeas bonds, and the certificate of the clerk of the district court. However, three excellent briefs of 126 pages remove any doubt about the fact that the issues are sharply contested, and the county attorney of Douglas county, to impress the court with the gravity of the questions involved, sets out that 239 similar cases, involving more than 7,000 separate parcels of land, have been carried through by this method of foreclosure in the last four years, and that suits involving 600 parcels of land are now pending; that the amounts in money are large, for more than $ 400,000 in delinquent taxes have already been collected as a result of such actions in Douglas county alone, and more than a million dollars worth of real estate in that county will be affected by the decision in this case. For these reasons, all parties urge that a decision be rendered in this test case at an early date.
The amended petition states that John McKiernan is now occupying and has been the owner of the said lot No. 10 since March 6, 1911, upon which date he and his wife gave a mortgage of $ 1,000 thereon to the said Commercial Savings & Loan Association, by which mortgage the owner agreed to pay all taxes; that payments were made by the borrower, leaving a balance of $ 674.13 due the said Commercial Savings & Loan Association on its loan.
The full amount of taxes, including paving, curbing and sewer assessments, with interest, due upon said lot to the county treasurer of Douglas county was $ 1,224.63, and neither the owner, who was primarily responsible, nor the said Commercial Savings & Loan Association as mortgagee, ever paid these delinquent taxes.
The board of county commissioners of Douglas county directed the county attorney to foreclose these long delinquent taxes. This action was prosecuted under the special form of tax foreclosure open only to counties when taxes are delinquent for more than three years after being offered for sale but not sold for want of bidders, as provided in section 77-2039, Comp. St. 1929.
As a result of such proceedings and in pursuance to the decree of foreclosure thereunder, said property was offered for sale upon June 4, 1929, and the highest bid was made thereon by the Pyramid Realty Company, cross-appellant herein, for the sum of $ 81. The sheriff made due return thereof, but said sale could not come up for confirmation before June 4, 1931, under said statute, which provides for a stay of two years from the date of the sale, during which time the owner of the fee or any person having a legal interest therein may redeem by paying, not the amount of the bid, but the full amount of taxes, interest and costs due the county.
Upon December 24, 1929, the plaintiff, Commercial Savings & Loan Association, tendered to the clerk of the district court the amount of said bid of $ 81 with costs and 10 per cent. interest, amounting in all to the sum of $ 115, which tender and offer were refused, and two days later made the same tender to the said Pyramid Realty Company, which tender was also refused. Suit was brought in the district court and upon April 26, 1930, the amended petition was filed.
The plaintiffs allege that section 77-2039, Comp. St. 1929, is unconstitutional and void, and pray that an accounting be had and the tender of the $ 115 be accepted and the title to said lot 10 quieted and confirmed in said plaintiffs.
In 1903 the legislature passed a general revenue act, known as chapter 73, Laws 1903. That entire act, covering some 90 pages, containing 242 sections, was a new and comprehensive measure dealing with all phases of assessment, levy, payment and collection of taxes, various methods of sale for delinquent taxes, tax certificates, tax deeds, and tax foreclosures. Section 231 of that act was later known as section 6559, Rev. St. 1913.
Appellees insist that they have been unable to find any decision involving a foreclosure under this section during the time it remained upon the statute books or thereafter. This section was repealed in 1919 by the enactment of chapter 59, Laws 1919, later known as section 6087, Comp. St. 1922, which act has now become section 77-2039, Comp. St. 1929. The appellants attack the constitutionality of this act for the reason that it did not contain the sections amended and repealed; that no bill can contain more than one subject, which must be clearly expressed in the title, and that by implication it amended several other sections of our statutes. They further charge that it also violates all of section 3, art. VIII of the Constitution, reading: "The right of redemption from all sales of real estate for the nonpayment of taxes or special assessments of any character whatever, shall exist in favor of owners and persons interested in such real estate, for a period of not less than two years from such sales thereof: Provided, that occupants shall, in all cases, be served with personal notice before the time of redemption expires." And, lastly, that it also violates that part of the third section of our Bill of Rights, which declares that no person shall be deprived of his property without due process of law. Plaintiffs cite many Nebraska cases, some of which will be discussed in this opinion.
It has been held in this state that, if the entire purpose and aim of a certain law is invalid and void, such law is as though it had never been passed. State v. Several Parcels of Land, 78 Neb. 703, 111 N.W. 601. But we find many states have held that, if only a...
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