O'Donnell v. Krneta, 29673

Docket NºNo. 29673
Citation238 Ind. 582, 154 N.E.2d 45
Case DateNovember 19, 1958
CourtSupreme Court of Indiana

Page 45

154 N.E.2d 45
238 Ind. 582
Geraldine Anselm O'DONNELL, Appellant,
Peter KRNETA and Sophie Krneta, Appellees.
No. 29673.
Supreme Court of Indiana.
Nov. 19, 1958.

[238 Ind. 585]

Page 46

Philip M. Cagen, Valparaiso, for appellant.

Lester L. Wilson, Winamac, Thomas B. Dumas, Rensselaer, for appellees.


This is a quiet title action by appellees to set aside a tax deed under which the appellant claims title as a successor to the interest of the original purchaser at tax sale. The property was sold for delinquent taxes on April 13, 1942 and a tax deed issued by the auditor on April 13, 1944. The complaint in this action was filed on September 14, 1951. The principal defense below and asserted here for reversal is that the appellees' action was barred by a special one year statute of limitation written in the tax laws, while appellees insist that only the general fifteen year statute of limitations [Burns' § 2-603] applies in cases such as this.

No question is raised as to the procedure by which the alleged errors are presented to this court and we therefore need not detail it here. It is appellant's contention that the cause of action is barred by Burns' Indiana Statutes--s 64-2203a [Acts 1947, ch. 309, sec. 2] and § 64-2212 [Acts 1941, ch. 224, sec. 4], both of which limit the bringing of actions to contest tax titles to one year after the execution of the auditor's deed.

The Act of 1919, ch. 59, Burns' Ann.St. § 64-101 et seq., is a comprehensive tax act purporting to cover the entire field of taxes and the sale of real estate that is tax delinquent. The original 1919 Act contained no provision therein with reference to a statute of limitations. However, in 1941 and 1947 [238 Ind. 586] this statute was amended. The amendatory Act of 1947, ch. 309, sec. 2, p. 1255 [Burns' § 64-2203a] reads as follows:

'Sales, certificates and deeds legalized--Pending litigation excepted--Limitation on actions.--All sales of real estate heretofore made to any county or other persons pursuant to chapter 224 of the Acts of 1941 [§§ 64-1407, 64-2203, 64-2205, 64-2212-64-2214] and all acts amendatory thereof, and all certificates and deeds heretofore executed by county auditors for any such real estate pursuant thereto are hereby legalized and rendered valid. Nothing in this section shall affect pending litigation. From and after the passage of this act, no action to contest the validity of any title acquired as a result of any sale of real estate so acquired by any county or other persons under said chapter 224 and acts amendatory thereof shall be brought after the expiration of one year from the date of the execution of the deed to the county or other persons.'

The amendatory Act of 1941, ch. 224, sec. 4 [Burns' § 64-2212] reads as follows:

'Limitation of action.--No action to contest the validity of any title acquired as a result of any sale of any real estate under this act shall be brought after the expiration of one year from the date of the execution of the deed.' (Our italics)

It may be seen, we have one statute of limitation prior to the sale and deed and one act subsequent thereto.

Appellees contend that the words 'under this act' in the 1941 amendment are to be construed as referring only to the amendments made in 1941 and thus would apply only to sales by the county, since the 1941 amendment for the first time empowered the county to purchase property that was delinquent for taxes and offer

Page 47

the same for sale. The property in question was not [238 Ind. 587] a purchase by the county for delinquent taxes and a sale thereon and would thus not fall within such limitation under such an interpretation. The 1947 amendment, it is contended, does not apply because it was enacted subsequent to the sale and execution of the deed. It is not necessary for us to consider that question in view of what we have to say concerning the 1941 Act.

The Acts of 1941, sec. 2 completely revised sec. 260 of the original 1919 act, Burns' Ann.St. § 64-2203, providing for the manner of sale under that act. In fact, there could no longer, after the 1941 amendment, be any sale except pursuant to the amendment of that year. We must conclude that the sale and deed executed were pursuant to the amendatory act of 1941. The words 'under this act' in section 4 (statute of limitations) therefore referred to the act under which the sale and deed were made in this case. If the legislature had intended to limit the amendment as contended by appellee, it could have said 'under the amendments to this act' or otherwise have specified the particular sections. The word 'act' as used in the amendment referred to the entire act as amended. Accordingly the one year statute of limitations is applicable.

The appellees next contend that section 4 (statutes of limitation) of the Act of 1941, ch. 224 (Burns' § 64-2212) is unconstitutional, because the title to chapter 224 of the Acts of 1941 is defective. The title is as follows:

'An Act to amend section 1 of an act entitled 'An act to amend Sec. 209 of 'An act concerning taxation,[238 Ind. 588] repealing all laws in conflict there-with and declaring an emergency,' approved March 11, 1919, and declaring an emergency,' approved March 12, 1925, and to amend Sec. 3 of an act entitled 'An act to amend Sections 258, 259, 260 and 283 of an act entitled 'An act concerning taxation--repealing all laws in conflict therewith and declaring an emergency,' approved March 11, 1919,' approved February 7, 1931, and to amend Sec. 262 and to repeal Sections 222 and 261 of an act entitled 'An act concerning taxation, repealing all laws in conflict therewith and declaring an emergency,' approved March 11, 1919, and repealing all laws in conflict therewith.'

The constitutional provisions applicable are Section 19 of Article 4 of the Constitution of Indiana, which provides:

'Every act shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.'

and Section 21 of Article 4, which reads:

'No act shall ever be revised or amended by mere reference to its title; but the act revised, or section amended, shall be set forth and published at full length.'

Appellee says sec. 209 of the Acts of 1919 is amended by sec. 1 of the amending Act of 1941, Burns' Ann.St. § 64-1407; That amendment of section 3 referred to in the title is accomplished by section 2 of the amending act, Burns' Ann.St. § 64-2203; Section 3 amends section 262 of the 1919 Act, Burns' Ann.St. § 64-2205 and sections 222 and 261 thereof are repealed by section 6 as stated in the title; However, section 4 of the amendatory Act of 1941 provides for a statute of limitation (1 year) and no statute of limitation is contained in the 1919 act sought to be amended and the amendatory act of 1941 does not state that sec. 4 thereof amends any specified section in the original Act of 1919. Since section 4 does not state it amends any specific section in the title of the amendatory act, it is argued, section 4 is unconstitutional[238 Ind. 589]

Page 48

on the authority of Draper v. Zebec, 1941, 219 Ind. 362, 37 N.E.2d 952, 38 N.E.2d 995.

The appellant, on the other hand, contends under the numerous decisions of this court an amendatory act may add or substitute sections dealing with different subject matters from those which they replace or repeal in the original act so long as such amendments still come within the purview of the title of the original act to be amended. State ex rel. Meyer-Kiser Bank v. Superior Court, 1931, 202 Ind. 589, 177 N.E. 322; State v. Lewis, 1924, 195 Ind. 344, 145 N.E. 496; State v. Closser, 1912, 179 Ind. 230, 99 N.E. 1057; Stiers v. Mundy, 1910, 174 Ind. 651, 92 N.E. 374; Brandon v. State, 1861, 16 Ind. 197.

The title to the original act of 1919, ch. 59 is:

'An Act concerning taxation--repealing all laws in conflict therewith and declaring an emergency.'

A statute of limitation confined to actions relating to the subject matter of the title to an act is within the purview of such title. An amendatory act which purports to add a statute of limitations to actions contesting tax title comes within the purview of a general act 'concerning taxation'. Wright-Bachman, Inc. v. Hodnett, 1956, 235 Ind. 307, 133 N.E.2d 713; Wright v. House, 1919, 188 Ind. 247, 121 N.E. 433; Farrar v. Clark, 1882, 85 Ind. 449.

Were it not for the fact that the Act of 1941 is an amendatory act rather than an independent or new general act, the question would be easily resolved.

The case of Draper v. Zebec, supra relied upon by appellees overruled Stiers v. Mundy, 1910, 174 Ind. 651, 92 N.E. 374 and limited other cases in that line of authority. Rose v. State, 1909, 171 Ind. 662, 87 N.E. 103; Cain v. Allen, 1906, 168 Ind. 8, 79 N.E. [238 Ind. 590] 201, 79 N.E. 896; Lewis v. State, 1897, 148 Ind. 346, 47 N.E. 675; Brandon v. State, 1861, 16 Ind. 197; State v. Bowers, 1860, 14 Ind. 195.

The Stiers case held 174 Ind. at page 655, 92 N.E. at page 376:

'Under the decisions of this court, the mere fact that the proviso of the amendatory act of 1901 [supra], refers to matters not germane to the subject-matter of the particular section it purports to amend, does not render it unconstitutional and void, if the subject-matter incorporated in the amendment is within the purview and is germane to the title of the act amended.'

This court said the same thing in State ex rel. Nicely v. Wildey, 1935, 209 Ind. 1, at page 6, 197 N.E. 844, 846:

'* * * The Legislature may repeal any or all of a given statute, or it may amend by substituting sections which differ entirely from the original, so long as the amended sections are germane to the subject-matter of the entire statute as expressed in the title.' (Our italics)


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