Schoenheit v. Nelson

• Decision Date: 08 July 1884
• Citation: 20 N.W. 205,16 Neb. 235
• Parties: A. SCHOENHEIT ET AL., PLAINTIFFS IN ERROR, v. JAMES NELSON, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

20 N.W. 205

16 Neb. 235

A. SCHOENHEIT ET AL., PLAINTIFFS IN ERROR, v. JAMES NELSON, DEFENDANT IN ERROR

Supreme Court of Nebraska

July 8, 1884

ERROR to the district court for Richardson county. Tried below before DAVIDSON, J.

AFFIRMED.

Isham Reavis and A. Schoenheit, for plaintiffs in error.

A. R Scott and C. Gillespie, for defendant in error.

OPINION

MAXWELL, J.

This action was brought by Nelson to foreclose certain tax liens upon real estate in Richardson county. A demurrer to the petition was overruled in the court below and a decree of foreclosure entered.

It is alleged in the petition, in substance, that in September 1864, one B. F. Cunningham purchased the land in controversy for the delinquent taxes due thereon for the years 1862 and 1863, and that he paid the taxes accruing thereon for the years 1864 and 1865; that in September, 1870, he purchased said land for the taxes due thereon for the years 1866, 1867, 1868, and 1869, and in September, 1871, he again purchased said land for the taxes due thereon for the year 1870. In 1875, Cunningham sold and assigned his certificates of purchase to one Grable, who in that year obtained "three separate tax deeds on the three separate tax sales of said lands." In the year 1880, one Jesse Crook brought an action of ejectment against Grable, and recovered the possession of the land in question. Afterwards, Grable sold and assigned all his interest in said premises to Nelson. There are other allegations to which it is unnecessary to refer.

The revenue law of 1858, 1864, and 1869, made taxes a perpetual lien upon real estate, but provides no mode of enforcing the same. In 1871 the law was amended so as to authorize the foreclosure of the lien as in cases of mortgages. The proper construction of the amendment of 1871 was before this court in Miller v. Hurford, 11 Neb. 377, 9 N.W. 477, and Miller v. Hurford, 13 Id., 14, and we adhere to those decisions. If the title acquired by a tax purchaser fails, he may enforce the tax lien by proceedings to foreclose the same. Peet v. O'Brien, 5 Neb. 360. Pettit v. Black, 8 Neb. 52. Wilhelm v. Russell, 8 Neb. 120. Miller v. Hurford, 11 Neb. 377. S. C., 13 Neb. 13. Towle v. Holt, 14 Neb. 221. Reed v. Merriam, 15 Neb. 323, 18 N.W. 137. Zahradnicek v. Selby, 15 Neb. 579, 19 N.W. 645. The law authorizing the foreclosure of tax liens then existing or afterwards to exist merely provides an additional remedy in favor of the tax purchaser for the enforcement of his rights.

The distinction between the remedy and the right is very clearly drawn by Chief Justice Marshall in Sturges v. Crowninshield, 17 U.S. 122, 4 Wheat. 122, 4 L.Ed. 529, where it is said, "The distinction between the obligation of a contract and the remedy given by the legislature to enforce that obligation has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct."

That laws affecting the remedy merely may be passed by the legislature is now too well settled to require the citation of authorities. And as the amendment of 1871 did not grant any additional lien for taxes past due, but merely provided a remedy to make the lien available, it did not therefore contravene any provision of the constitution.

The revenue law in force when these sales were made did not require the purchaser at tax sale to take out a deed in two years from the date of purchase, the language being, "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 land took place shall execute to the purchaser," etc., a conveyance, etc. Laws of...