McGavock v. Pollock

• Decision Date: 30 December 1882
• Citation: 14 N.W. 659,13 Neb. 535
• Parties: WILLIAM J. MCGAVOCK, APPELLANT, v. JOHN W. POLLACK, APPELLEE
• Court: Nebraska Supreme Court

14 N.W. 659

13 Neb. 535

WILLIAM J. MCGAVOCK, APPELLANT, v. JOHN W. POLLACK, APPELLEE

Supreme Court of Nebraska

December 30, 1882

APPEAL from the district court of Wayne county, BARNES, J presiding.The action was to cancel certificates of tax sale and tax deed issued thereon and to set aside proceedings in foreclosure of a pretended tax lien upon section 30, township 25, range 4 east, and to quiet plaintiff's title to said real estate.Judgment below for defendant.

REVERSED AND REMANDED.

J. C Crawford, for appellant.

M. McLaughlin, for appellee.

OPINION

LAKE, CH. J.

The first question presented relates to the tax deed executed on the fifteenth day of June, 1876.On behalf of the plaintiff it is claimed that the deed was void for want of authority on the part of the treasurer to make it at the time he did.It appears that the sale in question took place on the fifteenth day of June, 1874.The treasurer's certificate, to which the deed subsequently issued conformed, declared that, unless redemption were made as provided by law, the purchaser, or his heirs or assigns, would be entitled to a deed of the land, "on and after the fifteenth day of June, 1876."

Governing this matter, sec. 64, Gen. Statutes, 922, provided that: "The owner or occupant of any lands sold for taxes, or any other person, may redeem the same at any time within two years after the day of sale," etc.And sec. 67 that: "If no person shall redeem such lands within two years, at any time after the expiration thereof, and on production of the certificate of purchase, the treasurer of the county in which the sale of such lands took place shall execute to the purchaser, his heirs or assigns, in the name of the state, a conveyance of the real estate so sold," etc.

Taken together, the plain import of these two sections is, that the owner of land sold for taxes, or other interested person, shall have two full years "after the day of such sale" within which to redeem it.In excluding the day of sale from the period within which redemption may be made, this statute is analogous to the rule of the code of civil procedure, sec. 895, which is that: "The time within which an act is to be done, as herein provided, shall be computed by excluding the first day," etc.By observing this rule in fixing the period of redemption, the sale having been made on the fifteenth, the first day of the two years, time given for redemption was the sixteenth day of June, 1874, and the last the fifteenth day of June, 1876, the very day on which the deed was made.It is very clear, therefore, that the deed was unauthorized, and, being so, necessarily void.The right to redeem continued to the very last moment of the time given.And it cannot be doubted that this right, and the right to have the treasurer's deed, could not possibly co-exist.

And this deed was void for at least two other reasons.First.It fails to show where the sale was made.This the statute required, and the omission was fatal to the deed.Haller v. Blaco, 10 Neb. 36, 4 N.W. 362.Howard v. Lamaster, 11 Neb. 582.Second.It appears that the sale was made for the taxes of 1872 alone while those of 1871 and 1873 were at the same time delinquent.The treasurer was not authorized to sell the land except for all of the taxes then delinquent, together with the interest, penalty, and costs.State v. Helmer, 10 Neb. 25, 4 N.W. 367.Tillotson v. Small, ante p. 202.And for this last reason the deed subsequently...