Mills v. Bundy

Citation105 Neb. 470,181 N.W. 184
Decision Date23 December 1920
Docket NumberNo. 21184.,21184.
PartiesMILLS v. BUNDY ET AL.
CourtSupreme Court of Nebraska

OPINION TEXT STARTS HERE

Syllabus by the Court.

Under section 6615, Rev. St. 1913, where one holds possession of real estate for a period of five years, claiming title thereto under a treasurer's deed, issued under proceedings had under the Scavenger Act, no action can be maintained against said person to recover the title to said land, even though the deed is void for jurisdictional defects.

Appeal from District Court, Garfield County; Hanna, Judge.

Suit by Corwina R. Mills against John H. Bundy and others. Decree for defendants, and plaintiff appeals. Affirmed.William J. Hotz, of Omaha, for appellant.

Davis & Davis, of Ord, for appellees.

TIBBETS, C.

This is an action in equity by the plaintiff against the defendants to recover possession of the southwest quarter of section 12, township 24 north, range 13 west of the sixth principal meridian in the county of Garfield, state of Nebraska, and to redeem from a treasurer's deed based upon the so-called scavenger tax proceedings. Judgment for defendants, and plaintiff appeals.

The above-described premises were sold at tax sale November 12, 1906, under the Scavenger Act. The tax sale certificate was assigned to R. I. Holson. The final notice of confirmation of sale was dated June 15, 1908, and directed to C. R. Mills, as owner. The affidavit for service by publication designated the owner as C. R. Mills. The county assessment roll designated the owner as C. R. Mills, and in all the proceedings to final confirmation the owner was so designated, while the record title to the premises stood in the name of Corwina R. Mills. On the 10th day of December, 1908, the sale was confirmed, and the county treasurer of Garfield county ordered to execute and deliver to Rose I. Holson a deed to the above premises, she being the owner of the tax sale certificate. Deed was duly issued, and Rose I. Holson and husband conveyed the said premises to defendant John H. Bundy on the 18th day of September, 1909, who with his wife, defendant Mossie Bundy, mortgaged the same to defendant W. S. Bundy on March 29, 1914, to secure the payment of the sum of $800. The petition in this case sets out numerous grounds on which plaintiff predicates her right of recovery, but in the trial and her brief filed in this court plaintiff has abandoned all but one ground, i. e., the final notice directed to, and service had on, C. R. Mills, as owner, was insufficient to meet the requirements of section 6605, Rev. St. 1913. As at all times mentioned the title stood in the name of Corwina R. Mills on the records in the office of the register of deeds and in the name of C. R. Mills on the county assessment roll, while said section provides that service of final notice shall be on the owner.

The record discloses that plaintiff obtained a deed to the land in question on the 22d day of November, 1899, that for some time previous to 1906 the plaintiff had failed and neglected to pay the taxes on the same as they became due, and they were sold for taxes in 1906, and that plaintiff continued to disregard her obligations as a taxpayer, and has at no time offered to redeem said premises from the tax sale until commencement of this action, December 20, 1917. If plaintiff's contention be correct, for years she in substance had a speculative interest in said land. If the same decreased in value, the payment of accrued taxes and interest might be more than its value, and she could allow the purchaser of the land to obtain title by adverse possession to that which had become valueless to her; if it increased in value within the 10-year period, she could redeem. The record is silent as to the relative value of this land, but the action of the plaintiff as gained from the record would lead us to the belief that her sudden interest in the same might have been quickened by its increased value. She is not entitled to and cannot appeal to the equity side of this court; her rights if any, are purely of a legal nature. The contention of plaintiff is that as the record title of said premises at the time of the service of the final notice stood in the name of Corwina R. Mills, the notice should designate the owner as Corwina R. Mills, and service should have been had upon her under that name, and that the deed was void, and she was in no wise bound by the decree of confirmation.

That portion of said section 6605, Rev. St. 1913, applying to the matter under consideration, reads as follows:

“It shall be the duty of the holder of every tax certificate, other than the state, county or city, to cause a notice, which shall be termed ‘Final Notice,’ to be served upon the owner, as well as every person in actual occupancy of the lands or lots purchased, not less than three months nor more than six months from the expiration of the period of redemption. Such final notice shall be in the nature of process issuing out of the court having jurisdiction over the action wherein the decree was rendered. It shall be the duty of the sheriff of such county, whenever a certificate of tax sale is presented to him on which not more than six months remain of the period of redemption, to issue a final notice to the owner and occupants of the real estate described, in such certificate, which notice shall be entitled in the cause and shall notify the persons therein named, and the occupants of the land, that such land was sold on a day named, under a decree of court, and that the time of redemption from such sale will expire on a certain day therein named. * * * If the true and full name of the owner or occupant is not known, it shall be sufficient to designate such person by any name or description; or he may be designated as ‘unknown.’

Section 6579, Rev. St. 1913, as to notice of commencement of suit, contains, among others, the following provision:

“There shall likewise be published in connection with such notice a complete list of the lands and lots as shown in the county treasurer's statement of delinquent taxes, and opposite each description the name of the owner as shown by the county assessment roll of the preceding year.”

The final notice as cited in said section 6605 is that the notice shall issue “to the owner and occupants of the real estate described in such certificate, which notice shall be entitled in the cause.”

From reading the entire act and construing its entire provisions together, we can only arrive at the following conclusions: That the assessment roll is conclusive as far as all proceedings are concerned leading up to the deed as to the name of the owner; that the case is to be entitled in the final notice for confirmation as the original case; and that in order that the different sections of the act should harmonize and be consistent, the name of the owner of the premises should be designated in all of the proceedings as provided in section 6579.

“In construing a statute, an imperative rule is that effect, if possible, must be given to every clause and part of the statute.” State v. Fink, 74 Neb. 641, 104 N. W. 1059;McIntosh v. Johnson, 51 Neb. 33, 70 N. W. 522;McCann v. McLennan, 2 Neb. 286.

If in one part the proceedings and parties are definitely defined and designated, while in another part of the same proceedings a different requirement is provided, it would constitute an inconsistency that could not be reconciled, and if the contention of plaintiff be correct, this condition exists in the instant case. There is no greater sanctity thrown around the final notice and no greater necessity of naming the record owner of the land than in the proceedings leading up to the certificate of sale. Furthermore the act defines who is owner and how designated. From a critical examination of the entire act under which the title to the land was acquired by defendants, we are convinced that the requirements of the statutes were complied with in regard to final notice and service thereof.

The contention of the plaintiff is that the misnomer in the notice and affidavit in which service was made gave the court no jurisdiction to render a decree of confirmation. However this may be, and however defective our reasoning is as contained in the foregoing discussion, the court did confirm the sale; deed was issued, and from 1909 until the commencement of this action, a space of over seven years, defendant Bundy has been in possession of said premises as owner, under a title based upon the decree of the court confirming said sale. Whether the decree is valid or not, during all of said time plaintiff has remained quiescent, and has not until the commencement of this action attempted to assert her rights as owner. It was undoubtedly to meet such contingencies that section 6615, Rev. St. 1913, was enacted, which reads as follows:

“No action shall be maintained against a person in possession of real estate under a recorded treasurer's deed until such person has been tendered the full amount paid at the tax sale with interest and costs and all subsequent taxes paid with interest to the date of the tender; and no action shall be maintained against a person in possession of real estate under such deed who has been in possession thereunder for a period of five years.”

The case of Delatour v. Wendt, 93 Neb. 175, 139 N. W. 1023, is cited by plaintiff to sustain her contention that the tax deed is void. She says in her brief:

“A tax deed based thereon was void for all purposes.”

The above case does not so hold. What this court did say was:

“That the notice was insufficient, and that the deed issued in such suit was void as...

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