Mummert v. Grant
| Decision Date | 17 June 1929 |
| Docket Number | 26207 |
| Citation | 225 N.W. 773,118 Neb. 651 |
| Parties | DAVID Z. MUMMERT, APPELLEE, v. FRANK GRANT ET AL.: UNITED STATES OF AMERICA, INTERVENER, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Thurston county: MARK J. RYAN JUDGE. Motion to redeem sustained and cause remanded with directions.
Motion to redeem sustained and cause remanded with directions.
Syllabus by the Court.
Where an appeal has been brought to this court from an order confirming a sale under a tax lien foreclosure, the owner may redeem from such sale before a final order has been entered in this court; the amounts to be paid for such redemption shall be the same as fixed by law for redemption from sales under foreclosures of mortgages.
Appeal from District Court, Thurston County; Ryan, Judge.
Action by David Z. Mummert against Frank Grant and others, to foreclose a tax lien, wherein the United States intervened on behalf of Fred A. Baxter. From an order confirming the sale the intervener appeals, and Fred A. Baxter as owner moves for leave to redeem. Motion sustained, and cause remanded with directions.
James C. Kinsler and A. C. Epperson, for appellant.
A. M. Smith, contra.
In an action to foreclose a tax lien, David Z. Mummert, plaintiff, on November 25, 1925, recovered a decree of foreclosure for the sum of $ 757.20, with interest at 15 per cent. per annum from that date, and attorney's fee, taxed as costs, of $ 75.72, which was decreed to be a first lien on the west half of the northeast quarter of section 9, township 24 north, range 10 east, in Thurston county, Nebraska. The United States, because of a claim that the land was not taxable (alleging it to be Indian land) defended. By agreement of all parties, the sale under the decree was delayed until the question of the right of the state to tax the land was passed upon by the United States court of appeals. After that court decided the contention of the United States, holding that the land was taxable, an order of sale was issued on the decree and the land sold thereunder to W. T. Truesdale for the sum of $ 1,079.63, and on June 9, 1927, said sale was confirmed and the sheriff was directed to execute and deliver deed to purchaser.
From said order of confirmation, the United States, on behalf of Fred A. Baxter, appealed to this court, and gave supersedeas bond to David Z. Mummert, plaintiff, and W. T. Truesdale, purchaser, which bond was duly approved. The defendant Fred A. Baxter, owner of the land, has applied to this court for leave to redeem. The right to redeem is not questioned by appellees. The motion of the defendant Baxter to redeem is sustained. The only contest is the amount to be paid for such redemption.
Concerning the status of the parties under such appeal, it was said by Judge Harrison in Philadelphia Mortgage & Trust Co. v. Gustus, 55 Neb. 435, 75 N.W. 1107:
The statutes controlling the foreclosure of tax liens gives no specific directions as to amount necessary to redeem in cases in this present situation. Section 6088, Comp. St. 1922, concerning tax lien foreclosures, provides that the tax sale purchaser may proceed to foreclose his lien "in all respects as far as practicable in the same manner and with like effect as is provided for the foreclosure of real estate mortgages." Section 6095, Comp. St. 1922, gives right of such redemption after the sale and before confirmation by paying "the sum for which the land was sold, with interest and costs to date of confirmation." This language is not clear. If it is redeemed before confirmation, there can be no confirmation. Perhaps the law was intended to mean the date of redemption, and not date of confirmation. That is its effect.
This provision, without doubt, presupposes that on the sale and confirmation the holder of the tax lien will be paid the proceeds of the sale, or enough to satisfy his decree, interest, and the costs, and such payment would have been made if the supersedeas bond had not been given. This bond prevented the plaintiff from receiving his money, and took from the purchaser the right to the title and possession of the land, and the owner retained the use and possession of his land during the appeal.
It is wholly unfair and inequitable to permit the owner to enjoy the possession of the land and withhold the rights of the plaintiff and purchaser, and to now redeem by paying only the amount of plaintiff's decree, with interest to date of confirmation, and costs, which the owner now contends is all that he should be required to pay.
A reasonable construction of section 6088, Comp. St. 1922, giving a like effect to tax sale foreclosures as the law provides for mortgage foreclosures, where no other specific statute intervenes, makes it apply to redemption after confirmation and appeal to this court, with the same effect as redemption in this court from mortgage foreclosures. That requires the payment of the decree with interest, as found by the trial court, to the date of redemption, and costs, and 12 per cent. on the money actually paid by the purchaser on his bid, and which has been held by the sheriff, pending the appeal, from the time of such payment to date of redemption. This is in accord with the holding in the case of Lincoln Savings & Loan Ass'n v. Anderson, 115 Neb. 199, 212 N.W. 210, and Trompen v. Hammond, 61 Neb. 446, 85 N.W. 436.
The cause is remanded to the district court, with directions to determine the amount paid by the purchaser to the sheriff on his bid, and which has been held by said sheriff, and, if Fred A. Baxter, within 30 days after the court has determined said amount so paid by the bidder to, and held by, said sheriff, shall pay to the clerk of the district court the amount of plaintiff's decree, with interest at 15 per cent. from date of decree to date of redemption, and all costs in the district and supreme court, including attorney's fee, and also pay to the clerk of the district court, for the use of the bidder, 12 per cent. interest on the amount so paid by the bidder, from the time of such payment to the date of redemption, the redemption will be permitted. In case of such redemption, the sheriff shall return to the bidder the amount so held by the sheriff. If such payments are so made within the time hereinabove directed, the redemption will be effective, but, unless the payments are so made, the decree of the district court, confirming the sale and ordering deed made to the purchaser for the land described in the seventh cause of action in plaintiff's petition, will stand affirmed.
In this case I find myself unable to assent to the disposition made by this court of the matters involved in this case. I have no quarrel with the principle announced in the syllabus, but my sense of public duty impels me to protest against the exactions imposed upon the redemptors in this case as wholly unauthorized by law.
As preliminary to the discussion, it is suggested that, in addition to the facts recited in the opinion, it is undisputed that Truesdale, the purchaser at the foreclosure sale, was not a party plaintiff, nor had he any interest in the decree of foreclosure under which the sale was had, and that the amount of his accepted bid was less than the amount due on the decree of foreclosure at the time of the sale.
I also agree with the majority opinion that the sole question presented by the application to redeem is the amount to be paid for such redemption. It is, however, to be remembered that at this stage of the proceedings (after sale and before final confirmation) the right of redemption is wholly statutory and the amount required for that purpose must be consistent with the express terms of the controlling statute. Swearingen v. Roberts, 12 Neb. 333, 11 N.W. 325.
Assuming the conclusion stated in the majority opinion that "the amounts to be paid for such redemption shall be the same as fixed by law for redemption from sales under foreclosures of mortgages," then it must be admitted that the provisions of section 9012, Comp. St. 1922, are controlling. This statute, which was originally enacted in 1875 under the title, "An act providing for the redemption of real estate from decree and judgment liens," and which has never been amended, contains the following provisions:
"The owners of any real estate against which a decree of foreclosure has been rendered in any court of record, or any real estate levied upon to satisfy any judgment or decree of any kind, may redeem the same from the lien of such decree or levy at any time before the sale of the same shall be confirmed by a court of competent jurisdiction by paying into court the amount of such decree or judgment, together with all interests and costs; and in case the said real estate has been sold to any person not a party plaintiff to the suit the person so redeeming the same shall pay to said purchaser twelve...
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