Gibson v. Peterson

• Decision Date: 16 March 1929
• Docket Number: 26490
• Citation: 224 N.W. 272,118 Neb. 218
• Parties: JABE B. GIBSON, APPELLANT, v. ALBERT F. PETERSON ET AL., APPELLEES
• Court: Nebraska Supreme Court

224 N.W. 272

118 Neb. 218

JABE B. GIBSON, APPELLANT, v. ALBERT F. PETERSON ET AL., APPELLEES

No. 26490

Supreme Court of Nebraska

March 16, 1929

APPEAL from the district court for Rock county: ROBERT R. DICKSON JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

The time within which a private holder of a tax sale certificate other than a minor or an incompetent, may commence an action to foreclose such certificate, is determined by section 6097, Comp. St. 1922, and such an action must be brought within five years from the date of the tax sale certificate.

Where the language of a statute is clear and unambiguous, it should be given effect according to its plain terms.

Appeal from District Court, Rock County; Dickson, Judge.

Action by Jabe B. Gibson against Albert F. Peterson and others. Judgment for defendants, and plaintiff appeals. Affirmed.

R. J. Shurtleff, for appellant.

Helen McGerr, William M. Ely and H. D. Curtiss, contra.

T. B. Dysart, amicus curiae.

Heard before GOSS, C. J., GOOD, THOMPSON, EBERLY and DAY, JJ., and REDICK and SHEPHERD, District Judges.

OPINION

GOOD, J.

From a judgment of the district court denying him foreclosure of three tax sale certificates, on the ground that his causes of action were barred by the statute of limitations, the plaintiff has appealed. Each certificate was issued and dated May 17, 1922. This action was begun October 25, 1927.

Plaintiff contends that an action to foreclose a tax sale certificate may be brought at any time within three years after the expiration of the time for redemption from such tax sale, and that the time for such redemption is five years from the date of sale. He relies upon sections 6068 and 6073, Comp. St. 1922, as giving to the owner of land, or one having an interest therein, a period of five years in which to redeem from a tax sale, and then relies upon section 6089, Comp. St. 1922, as extending the period, within which a foreclosure action may be brought, to three years after expiration of the time for redemption. An examination of section 6089, Comp. St. 1922, in connection with the preceding section, clearly shows that it relates to the right of counties and other municipal corporations to bring actions for foreclosure of tax liens, and not to the right of an individual purchaser at a tax sale. The section, therefore, is not applicable to the instant case.

Plaintiff also cites and relies upon the case of Mead v. Brewer, 77 Neb. 400, 109 N.W. 399. In that case it was held that an action to foreclose a tax sale certificate may be commenced at any time within five years from the date when redemption from the same may be made by the owner. That decision was rendered under a former revenue law. Section 179, ch. 77, Comp. St. 1889, authorized the bringing of an action to foreclose a tax lien "at any time before the expiration of five years from the date of such certificate." Under the law then existing, the landowner was entitled to a period of two years from the date of the tax sale certificate in which to redeem. The court took the view that the holder of the tax sale certificate was entitled to a period of five years within which to bring his action, and that, since it could not be brought during the time the owner of the premises might redeem, the holder of the tax sale certificate was entitled to a period of five years after the time for redemption had expired. See Alexander v. Wilcox, 30 Neb. 793, 47 N.W. 81; Alexander v. Thacker, 43 Neb. 494, 61 N.W. 738; Darr v. Wisner, 63 Neb. 305, 88 N.W. 518; Stevens v. Paulsen, 64 Neb. 488, 90 N.W. 211; Whiffin v. Higginbotham, 80 Neb. 468, 114 N.W. 599.

Defendants rely upon section 6097, Comp. St. 1922, as barring plaintiff's causes of action. That section, so far as applicable to the present consideration, is as follows: "If the owner of any tax sale certificate shall fail or neglect to demand a deed thereon, or to commence an action for the foreclosure of the same within five years from the date of the sale, such tax sale certificate shall cease to be valid or of any force or effect whatever, and the real estate covered thereby shall be forever released and discharged from the lien of all taxes for which the same was sold. And it is hereby made the duty of each and every county treasurer of the state of Nebraska to enter on the tax sale records of his or her office a cancelation of all tax sales on which five years have elapsed since date of sale, with date of entry affixed, in language substantially as follows," etc.

It will be observed that the language of section 6097, Comp. St. 1922, does not purport to give to the holder of a tax sale certificate a period of five years within which he may bring his action to foreclose. It simply limits the time to a period which expires, by its terms, five years from the date of the certificate. In this respect it is unlike the former statute (Comp. St. 1889, ch. 77, sec. 179), wherein the holder of a tax sale certificate was given a period of five years within which to bring his action to foreclose.

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