W. Land Co. v. Buckley

• Citation: 3 Neb. [Unof.] 776,92 N.W. 1052
• Parties: WESTERN LAND CO. v. BUCKLEY ET AL.
• Decision Date: 17 December 1902
• Court: Nebraska Supreme Court

3 Neb. [Unof.] 776

92 N.W. 1052

WESTERN LAND CO.

v.BUCKLEY ET AL.

Supreme Court of Nebraska.

Dec. 17, 1902.

Commissioners' opinion. Department No. 1. Appeal from district court, Adams county; Adams, Judge.

“Not to be officially reported.”

Action by the Western Land Company against Timothy J. Buckley and others. Judgment for plaintiff, and defendants appeal. Affirmed.Batty & Dungan, for appellants.

L. J. Capps and J. P. A. Black, for appellee.

KIRKPATRICK, C.

This is a suit brought by the Western Land Company, appellee, against Timothy J. Buckley et al., to foreclose a tax lien. The land company had judgment of foreclosure in the district court, and the cause is brought to this court upon appeal by defendants below. It is disclosed by the record that on November 10, 1892, and prior thereto, M. R. Davidson was the owner of certain lots in the city of Hastings. On that day they were sold by the treasurer for delinquent taxes, the Western Land Company, appellee, being purchaser. On the 2d day of August, 1893, there was executed a mortgage on the lots so purchased by appellee, which was subsequently foreclosed, and to which foreclosure suit appellee and others were made parties defendant. Appellee made no appearance, and subsequently a decree of foreclosure was entered, an order of sale was issued, and the property sold at sheriff's sale. The amount due upon appellee's tax lien was deducted by the sheriff upon a certificate from the county treasurer. The property was sold to Henry Brewer, mortgagee. Sale was confirmed, and thereafter Brewer conveyed the premises by warranty deed to Timothy J. Buckley, one of the appellants.

Two questions are presented by the pleadings and the evidence, upon the determination of which the result of this controversy must depend: First, was appellee, the Western Land Company, foreclosed and barred of its tax lien by the decree foreclosing the mortgage, to which decree it was a party? Second, was the right to foreclose its tax lien barred by the statute of limitations at the time it commenced its tax foreclosure?

Upon the question whether or not the holder of a tax lien prior in point of time to the date of a mortgage being foreclosed is a necessary or proper party, we express no opinion. In this case the tax sale was made on November 10, 1892. The mortgage foreclosure proceedings were commenced October 3, 1894, and within less than two years from the date of the certificate of tax sale. It is clear that under the statute the holder of the tax-sale certificate had no right to foreclose the same until after the expiration of the time within which the landowner had a right to redeem, and the trial court would have been without authority to enter a decree foreclosing the lien until after the expiration of the two years from its date. So that, under the circumstances of this case, we are of opinion that appellee, while likely a proper party, was, at all events, not a necessary party to the mortgage foreclosure proceedings. However, that question is not decisive of the question in controversy. That portion of the petition in the mortgage foreclosure which relates to the rights of appellee is in the following language: “These plaintiffs further allege that the defendants, * * * the Western Land Company, and M. R. Davidson, have or claim to have some interest in and to said property, the exact nature of which is unknown to these plaintiffs, but plaintiffs allege that whatever interest the said defendants may have are junior, subject, and inferior to the lien of these plaintiffs.” The prayer of the petition...