Madison County v. School Dist. 2 of Madison County

• Decision Date: 11 April 1947
• Docket Number: 32166.
• Citation: 27 N.W.2d 172,148 Neb. 218
• Parties: MADISON COUNTY v. SCHOOL DIST. NO. 2 OF MADISON COUNTY.
• Court: Nebraska Supreme Court

27 N.W.2d 172

148 Neb. 218

MADISON COUNTY v. SCHOOL DIST. NO. 2 OF MADISON COUNTY.

No. 32166.

Supreme Court of Nebraska

April 11, 1947

Syllabus by the Court.

1. The lien of taxes on real property attaches at the time provided by statute.

2. Where a general tax has been levied and assessed on real property, and the title then vested in a governmental subdivision before the date fixed by statute for the tax to attach as a lien, the subdivision takes the property free of the tax burden.

3. When a governmental subdivision purchases property upon which there exists a lien for taxes, the lien is not extinguished. It takes the property subject to the lien to the same extent as would a private purchaser.

4. As a general rule, in the absence of a statute expressly granting such right, the land and property of the state or its agencies or political subdivisions is not subject to seizure under general execution. General statutory provisions making property subject to execution are construed to apply only to the property of private persons or corporations, and not to that of the state or its governmental subdivisions.

5. The real property of a school district held and used for school purposes cannot be sold to satisfy the lien of a tax under the provisions of chapter 77, article 19 R.S.1943.

Hadley Kelsey and Andrew D. Mapes, both of Norfolk, Walter R Johnson, Atty. Gen., and Erwin A. Jones, Asst. Atty. Gen for appellant.

M S. McDuffee, of Norfolk, for appellee.

Heard before SIMMONS, C. J., PAINE, CARTER, YEAGER, and CHAPPELL, JJ., and NUSS, District Judge.

SIMMONS Chief Justice.

In this action plaintiff seeks the foreclosure of tax liens under the provisions of chapter 77, article 19, R.S. 1943. The petition sets out, as ten causes of action, the taxes levied for certain years on ten separate parcels of real estate; and prays for a determination of the amounts due, that the property be sold as upon execution, and for equitable relief.

Issues were made and trial had resulting in a finding that the alleged taxes involved are not enforceable and dismissing plaintiff's petition and causes of action. Plaintiff appeals, assigning error of the court in holding that the defendant is not required to pay taxes on real property acquired by it when such taxes have become a lien thereon prior to the acquisition by the defendant. We affirm the judgment of the trial court.

All the evidence was by stipulation. Questions of fact or pleadings are not presented. Tax sale certificates have not been issued. The action is to foreclose the tax lien.

The defendant is a school district operating under the laws of the state, its district boundaries including the city of Norfolk (population as of 1940, 10,490) and some adjacent territory. The defendant owns and uses all of the real property involved for school purposes. The records in the offices of plaintiff county show the taxes against the property and that they are unpaid.

The taxes involved fall into three classifications. The issues can be more clearly stated by following the classifications and determining the issue presented as to each classification. The stipulations are insufficient for us to consider here the various methods by which the defendant became vested with the titles involved.

Classification 1. The defendant secured the title in the taxing year before the date of the levy of the tax. All of the taxes involved in the first, fourth, and eighth causes of action, and a part of the taxes involved in the sixth, seventh, and tenth causes of action are in this classification. Article VIII, section 2 of the Constitution provides in part: 'The property of the state and its governmental subdivisions shall be exempt from taxation.' See section 77-202, R.S. 1943. It need not be demonstrated that the defendant school district is a governmental subdivision. Substantially, the question presented as to the taxes and lands involved in this classification has been decided in American Province of the Servants of Mary Real Estate Corporation v. County of Douglas, 147 Neb. 485, 23 N.W.2d 714. It follows that the trial court did not err in dismissing plaintiff's cause insofar as the alleged taxes involved in the first classification are concerned.

Classification 2. The defendant secured the title by deed in the taxing year after the date of the levy of the tax. A part of the taxes involved in the third cause of action and all involved in the fifth and ninth causes of action fall into this classification. The date of the delivery of the deeds is not shown. In the third cause of action the deed is shown recorded August 14, 1914; in the fifth cause of action the deed is shown recorded August 17, 1931; and in the ninth cause of action the deed is shown recorded October 1, 1942. For the purposes of this opinion we consider these dates as the time title passed.

In 1903, the legislature enacted the following: 'Taxes on real property shall be a first lien thereon from and including the first day of October of the year in which they are levied until the same are paid.' Laws 1903, ch. 73,§ 14, p. 390, appearing as sec. 4935, Comp.St. 1907 and sec. 6302, Rev.St. 1913. In 1919, this act was amended as to a matter not material here. Laws 1919, ch. 163, § 1, p. 367. In 1921, this act was repealed and re-enacted in this language: 'Taxes on all real property shall be a first lien thereon from and including the first day of December of the year in which they are levied until the same are paid, except * * *.' (The emphasized words indicate the changes.) Laws 1921, ch. 133, art. II, § 3, p. 547. This became section 77-203, Comp.St. 1929. In 1933, this act was repealed and chapter 134, Laws 1933, section 1, page 514, enacted providing: 'Taxes on real property shall be a first lien thereon from and including the first day of January next following the date upon which the same may be levied, and until the same are paid.' This language was contained in chapter 151, Laws 1935, section 1, page 557; in chapter 167, Laws 1937, section 2, page 637; in chapter 98, Laws 1939, section 2, page 422; and in chapter 157, Laws 1941, section 2, page 608. In the 1943 revision, the language is: 'All general real property taxes levied for the state, or for any county, city, village or other political subdivision therein, shall be due and payable on January 1 next following the date of levy thereof, and commencing on that date shall be a first lien on the real estate taxed until paid.' Sec. 77-203, R.S. 1943.

The original act was before us for construction in Taylor v. Harvey, 90 Neb. 562, 134 N.W. 173, wherein we held that 'Though general taxes on real estate are assessed and levied before October first, they do not become a lien or an incumbrance at an earlier date. * * * The lien of taxes is a creation of the Legislature. It attaches only at the time provided by statute.' So here the taxes involved, although assessed and levied before defendant became vested with the title, had not attached as a lien at that time. The defendant having received title free of the lien, the lien did not attach thereafter because there was no taxable property to which it could attach as of the operative date of the statute.

The entire taxing process had not been completed when the defendant secured title. It is to be noted that under our statute the date of the lien is fixed at a date subsequent to the assessment and levy. This case is therefore clearly distinguishable from those cases where the statute fixed the lien date at and relates it back to a time prior to the assessment and levy, such as in the case of United States v. Alabama, 313 U.S. 274, 61 S.Ct. 1011, 85 L.Ed. 1327.

An almost identical case, both as to facts and applicable statutes, was presented to the Supreme Court of Kansas in City of Wichita v. Anderson, 119 Kan. 241, 237 P. 1024. That court held that the property was exempt, it having been purchased by the governmental subdivision before the taxes became a lien thereon. We agree with the conclusions there reached.

It follows that the trial court did not err in dismissing plaintiff's cause insofar as the alleged taxes involved in the second classification are concerned.

Classification 3. The defendant secured the title in a year following the taxing year or years in which the taxes were levied and became a lien upon the land. The taxes involved in the second cause of action and a part of those involved in the third, sixth, seventh, and tenth causes of action are in this classification.

The first question presented as to the taxes included in this classification is this: Is the lien of the tax dissolved and the property discharged therefrom because of the fact of purchase by a governmental subdivision? If that question is answered in the negative, then the question comes: May the lien be enforced by a sale of the property? We consider the questions in that order.

We have been cited to two of our decisions. The first is City Safe Deposit & Agency Co. v. City of Omaha, 79 Neb. 446, 112 N.W. 598 21 L.R.A., N.S., 72. The decision there turned upon the rule of estoppel. That question is not presented here. The second, Fontenelle Forest Association v. Sarpy County, 118 Neb. 725, 226 N.W. 327, was an action, as stated in the opinion, '* * * to cancel certain taxes, or assessments, levied against the property of plaintiff, and to enjoin county officials from collecting such taxes or thereafter attempting to levy any taxes upon the association's property.' The question presented, and the facts recited in the opinion, do not present the question we have here. It is urged in the briefs here that there were taxes involved in that case which had been assessed and become a lien prior to the date of the acquisition by the...