County of Logan v. Carnahan

• Decision Date: 03 June 1903
• Citation: 95 N.W. 812,66 Neb. 693
• Parties: COUNTY OF LOGAN, APPELLEE, v. WILLIAM H. CARNAHAN ET AL., APPELLANTS
• Court: Nebraska Supreme Court

95 N.W. 812

66 Neb. 693

COUNTY OF LOGAN, APPELLEE, v. WILLIAM H. CARNAHAN ET AL., APPELLANTS

Supreme Court of Nebraska

June 3, 1903

OPINION

HOLCOMB, J.

A rehearing having been granted, this cause is again submitted for further consideration. For former opinion, see Logan County v. Carnahan, ante, page 685. It is there held that a county can not maintain an action for the foreclosure of a tax lien unless based upon an antecedent tax-sale certificate or tax deed; and the petition in this case failing to show there had been issued a tax-sale certificate for delinquent taxes, was deemed defective in substance, and therefore it was held that the general demurrer interposed to the petition praying for a foreclosure of the tax lien should have been sustained. The decision, if not in terms, in effect, overruled an announcement apparently sustaining the contrary of the proposition in Grant v Bartholomew, 57 Neb. 673, 78 N.W. 314, wherein it is declared that an ordinary foreclosure suit in a court of equity could be maintained by a county to enforce a lien for delinquent taxes after the time the property becomes liable for sale because of such delinquency, without the prior issuance of a tax-sale certificate. It is urged in the case at bar that we should recede from the proposition held to in the former opinion and follow Grant v. Bartholomew, because the decision in the latter-mentioned case has become a rule of property, and for such reason the doctrine of stare decisis should be applied and accepted as controlling in the final disposition of the matters herein presented. If, as contended, the decision in the Grant-Bartholomew Case has become a rule of property, to overrule which would now affect vested interests and disturb titles to real estate acquired in foreclosure proceedings which have been carried on in conformity with the rule therein announced, we should be slow indeed to overrule the same, and ought not to do so unless satisfied the decision is palpably erroneous and its reversal required in order to vindicate an obvious principle of law, and prevent injustice of a magnitude sufficient to overbalance the evil consequences which inevitably arise from the act of overturning the prior opinion. Lindsay v. Lindsay, 47 Ind. 283; Lombard v. Lombard, 57 Miss. 171; Reed v. Ownby, 44 Mo. 204; Kearny v Buttles, 1 Ohio St. 362. As has been forcibly and aptly said, when parties, relying on a decision or a line of decisions of a court of last resort, have transacted important business affairs, which would be seriously affected by a change of the rule, the court is in duty bound to adhere to such decision, unless palpably and fundamentally erroneous, in all subsequent litigation, however it might be inclined to hold if the question were res nova. Paulson v. City of Portland, 19 P. 450; Gage v. City of Charleston, 3 S.C. 491. It may readily be conceded if, as claimed by counsel for appellee, the overruling of Grant v. Bartholomew in the one particular mentioned would result in the disturbance of titles to real estate acquired in foreclosure proceedings conducted in conformity with the rule sanctioned by expressions found in the opinion, and would destroy the value of the evidences of ownership of land acquired in such proceedings, we could hardly justify our action by the application of sound legal principles in now overturning the law as therein enunciated, even though convinced that the decision in that case was erroneous. While the force of that opinion as authority is denied on the ground that what is said on the subject we are now considering is obiter, consideration of the whole case as presented and determined leads to the conclusion that, although not necessary and essential in reaching a final conclusion in the case, yet the judgment of reversal therein rendered was predicated upon three distinct and different grounds discussed in the opinion, one of which was the right of a county to maintain an action in a court of equity to foreclose a tax lien without an antecedent sale of the property, on which the lien existed, by the county treasurer in the manner provided by statute. Conceding all that is contended for regarding the binding force of a former decision which has become a rule of property, does the question determined in the Grant-Bartholemew Case come within the rule? We think not. The decision related to, and was concerning, a rule of practice. This must be so, when we pause for a moment to consider the character of the action and the force and effect of a decree regularly rendered by a court of competent jurisdiction, even though a cause of action was defectively stated in the petition, as is held in the case at bar.

The district court manifestly has jurisdiction over the subject-matter--that is, it is authorized to decree the sale of real estate for the satisfaction of delinquent taxes which are a lien thereon--and it has undoubted jurisdiction over the parties who come before it or are brought within the jurisdiction of that tribunal. The county boards are by statute empowered in certain cases to bring actions for the foreclosure of liens for taxes assessed against real estate, which have become delinquent, and in this manner to collect the taxes and cause them to be distributed where they properly belong--to those political divisions for whose benefit they were levied. It is true that in the regular exercise of this authority a tax-sale certificate should have been issued and held by the county as a proper basis for the exercise of its right to maintain an action for the enforcement of the collection of delinquent taxes, but this goes only to the regularity of the proceedings by which the authority is exercised and not to the power itself. The court having jurisdiction to hear and determine the right of a county to enforce a tax lien and to decree foreclosure and sale of real estate in satisfaction thereof, and the county having authority under the statute to institute proceedings and maintain an action in its own behalf and as trustee for those other bodies for whom the taxes are levied, a decree rendered which determines the right of a county to maintain such an action, and directs a sale of the property, would not be subject to collateral attack, even though the court committed an error in holding the petition stated a cause of action. If, in such action brought by a county to foreclose a lien for taxes assessed on real estate, the petition is materially defective because of a failure to properly allege facts disclosing that prior to the institution of the suit to foreclose, the land upon which the tax was a lien had been sold by the county treasurer and tax-sale certificate issued therefor, this fact would not render a decree therein absolutely void for lack of jurisdiction and subject to collateral attack. The sufficiency of a petition is not the test of jurisdiction. Even though the court commits error in holding it sufficient if it had jurisdiction, such holding will not subject the judgment rendered to collateral attack. Trumble v. Williams, 18 Neb. 144, 24 N.W. 716; Taylor v. Coots, 32 Neb. 30, 48 N.W. 964. Not only is it required that an antecedent tax-sale certificate should be issued as a basis for the suit to foreclose, but it is equally essential that the sale at which the certificate was issued occurred two years prior to the institution of the foreclosure proceeding; and yet it would not, we apprehend, be contended that a suit instituted before the expiration of the two years, whether by a county or by a private individual purchaser of the tax-sale certificate, would render a decree for the sale of the property absolutely void and subject to collateral attack. The right to bring a suit to foreclose a tax lien by a county is, we think, distinguishable from its right to prosecute on a particular cause of action. One goes to the jurisdiction of the court to entertain any action, and the other to the right of the county to maintain the particular one which is under consideration. Illinois C. R. Co. v. Adams, 180 U.S. 28, 35, 45 L.Ed. 410, 21 S.Ct. 251. The statutes give to counties authority to institute and maintain actions for the foreclosure of liens on real estate for taxes levied thereon, and the district courts are courts of general common-law and equity jurisdiction and are empowered to try and determine the subject-matter of controversies growing out of such actions, and the parties, being before it, are bound by its adjudications; therefore, we think it must follow that such adjudications as have been made under a procedure where the rule announced in Grant v. Bartholomew has been followed, which are unappealed from, have become final and conclusive--binding on all parties over whom the court obtained jurisdiction. Hence it is that the announcement of a contrary rule can extend no further than to advise present and future litigants of their rights where like questions are involved. We are, therefore, of the opinion that the decision in the Grant-Bartholomew Case, in so far as it has a bearing on the case at bar, involves no rule of property and that we are at liberty to depart from it without disregarding the doctrine invoked in its support.

The opinion heretofore handed down in this case has occasioned widespread interest, because of its bearing on the question of the right of the different counties of the state to enforce collection of delinquent taxes on real estate by foreclosure proceedings when the properties on which the taxes are levied have not been sold to private parties by the several county treasurers, either at public or private sale, as provided by law. We have been favored in the rehearing with numerous briefs of counsel practicing at the bar of this court who are interested...