County of Lancaster v. Trimble

• Decision Date: 11 June 1892
• Citation: 52 N.W. 711,34 Neb. 752
• Parties: COUNTY OF LANCASTER, APPELLEE, v. EDWARD P. TRIMBLE ET AL., APPELLANTS
• Court: Nebraska Supreme Court

52 N.W. 711

34 Neb. 752

COUNTY OF LANCASTER, APPELLEE, v. EDWARD P. TRIMBLE ET AL., APPELLANTS

Supreme Court of Nebraska

June 11, 1892

REHEARING of case reported 33 Neb. 121.

AFFIRMED.

J. R Webster, for appellants:

The court erred in overruling the motion to strike out all items to and including the year 1872. (Johnson v. Hahn, 4 Neb. 139; Peet v. O'Brien, 5 Id., 362; Pettit v. Black, 8 Id., 59; Lynam v. Anderson, 9 Id., 378.) The remedy by foreclosure can only be pursued under the restrictions of the statute, and is limited to cases involving at least $ 200. (Cooley, Taxation, 13, 359 364; Nebraska City v. Gas Co., 9 Neb. 346; Johnson v. Hahn, 4 Id., 148; Lincoln B. & L. Ass'n v. Graham, 7 Id., 180; Warren v. Mayor, 2 Gray [Mass.], 99; State v. Com'rs, 5 O. St. 507; Jones v. Gray, 8 Gray [Mass.], 339; Campau v. City, 14 Mich. 285; Slawson v. Racine, 13 Wis. 444; State v. Dousman, 28 Id., 547; Miller v. Lancaster, 17 Neb. 87; Lathrop v. Mills, 19 Cal. 514; State, ex rel. Att'y Gen'l, v. Harris, 19 Nev. 222.) The lien is not lost or released by failure of foreclosure. (Johnson v. Hahn, 4 Neb. 148; Cooley, Taxation, 359, 364.)

N. Z. Snell, contra, cited, contending that the proviso as to the $ 200 was invalid: Fayette Co. v. Bank, 10 L. R. A. [O.], 196; Lawton v. Steele, 7 L. R. A. [N. Y.], 134; State, ex rel. Cornish, v. Tuttle, 53 Wis. 45; Santo v. State, 2 Iowa 165; McCready v. Sextons, 29 Id., 356; Commonwealth v. Hitchings, 5 Gray [Mass.], 482; Robinson v. Bidwell, 22 Cal. 379; Muldoon v. Levi, 25 Neb. 457; State v. Hurds, 19 Id., 316; State, ex rel. Miller, v. Lancaster Co., 17 Neb. 85; Bailey v. State, 30 Id., 855.

OPINION

MAXWELL, CH. J.

An opinion was filed in this case which is reported in 33 Neb. 121. A rehearing was granted and the cause again submitted. The petition alleges that the land was subject to taxation for state and county taxes for the years 1872 to 1882 inclusive; that the lot was duly listed and assessed for taxation for each of said years and taxes duly levied thereon, and that the county clerk prepared the tax lists for each of said years, and that taxes became delinquent and have never been paid; that the tax for 1882, November, 1883, being delinquent, the premises were duly offered at tax sale and not sold, and on May 22, 1884, were sold to the county of Lancaster for the sum of $ , including interest and penalty, for delinquent, taxes of the years 1882, 1881, 1870, and city tax for 1872 and 1875; copy of the certificate by the treasurer is set forth in the petition; that the certificate has ever remained in the treasurer's custody and is the property of the plaintiff, Lancaster county; that since such sale, tax for years 1883, 1884, 1885, 1886, 1887, and 1888 has been levied and remains unpaid; that no redemption of the tax has been made; then follows a table of the items of county and state taxes of each year, and that the time for redemption expired May 22, 1888; that three months prior thereto notice was served on the owner and on the person to whom it had been assessed, and on the occupant, that unless redemptions were made, a foreclosure would be commenced; that the sum due is $ , and five years have not elapsed since the sale; that no proceedings have been had at law to collect the tax, and prayer for foreclosure.

It is claimed by the appellant that a motion was filed to strike out of the petition all items of tax of the year 1872 and prior thereto, which was overruled and appellants excepted. It is sufficient to say that the record contains no motion of that kind or any order thereon or intimation that such motion was filed. It will not be considered, therefore.

The plaintiff in error filed a demurrer to the petition as follows:

"Now come the defendants and demur to the petition herein filed, because:

"1. The petition does not state a cause of action against the defendant or yet against the said real estate.

"2. Because it appears that the alleged cause of action does not amount to $ 200, as required by section 1, article 4, of chapter 77, Compiled Statutes of Nebraska.

"3. Because it does not appear that the plaintiff, the county of Lancaster, has paid any portion of said tax."

It is contended on behalf of the appellants, with considerable earnestness, that each of the three grounds of demurrer is well taken and should be sustained. It will be conceded that the right of foreclosure of a tax lien is derived alone from the statute. The theory of taxation in this state is that all property not exempt shall bear its proportionate share of the burden of taxes. Where land is assessed and taxes levied and not paid by a certain time named it is offered for sale, and if not sold either at public or private sale, then it may be bid in by the county. The county purchases it as a last resort in order to secure the amount due thereon. The land-owner, after the purchase, has two years in which to redeem, and if the land is occupied, personal...