91 Neb. 274 | Neb. | 1912
Plaintiff brought suit in the district court for Gage county to foreclose a tax sale certificate on lot 3, block 22, in Cropsey’s addition to the city of Beatrice. The. petition is in the usual form. Defendant filed an answer and cross-petition, pleading a former adjudication and praying that the title of defendant be quieted. Defendant prevailed in the court below, and plaintiff appeals.
We do not agree with the contention of plaintiff that a valid tax lien can only be barred by payment- or the statute of limitations. General expressions of that kind may be found in reported cases, but in every instance it will be found that those general statements apply to the facts of the case in which the language is used. A right obtained under a tax sale certificate, like any other civil right, may be barred by the decree of a court of competent jurisdiction in a suit where the owner of such certificate is duly made a party, and his claim to priority under that lien is assailed in the pleadings and adjudicated against him by the court. One duly served with summons thereby becomes a party to the suit or action, and, unless subsequently dismissed, remains such throughout the proceedings. As such party he is presumptively present in court during the trial and at the entry of judgment. He is .charged with notice of every claim adverse to him con
In so holding, we have not overlooked Western Land Co. v. Buckley, 3 Neb. (Unof.) 776, and Gibson v. Sexson, 82 Neb. 475. Western Land Co. v. Buckley is an unofficial commissioner’s opinion and has no standing as an authority in the sense in which the doctrine of stare decisis is applied. Flint v. Chaloupka, 72 Neb. 34. P>ut, even if it were to be considered as an authority generally, it could not be treated as such in this case. In that case the amount due upon the tax lien was deducted by the sheriff at the time of the sale of the property under the mortgage foreclosure suit' in which the holder of the lien failed to appear; hence, the purchaser at the mortgage foreclosure sale took subject to the rights of the holder of the tax lien. Again, in that case it was said: “Upon the question whether or not the holder of a tax lien prior in point of time to the date of a mortgage being
In Lincoln Nat. Bank v. Virgin it is said: “There is no doubt of the jurisdiction of a court of equity, upon proper pleadings in a foreclosure proceeding, to determine the rights of all parties thereto with respect to the subject of the controversy, whether plaintiffs or defendants. But the power to conclude parties not claiming adversely to the plaintiff, whether subsequent mortgagees, or mortgagor and mortgagee, so as to prevent them from after-wards averting their rights as against each other, depends upon whether such power has been invoked by one or more of the parties tlms interested. *. * * The general rule is that a default is an admission of such facts only as are properly alleged in the petition or complaint.
The reasoning of Posa?, J., in that case applies here. In the Sibbernsen suit the plaintiff asserted the priority of his lien over any claim or lien of defendant Cowles, who had been personally served with summons. There is no doubt of the jurisdiction of the court to determine in that suit the rights of those two parties with respect to the subject of the controversy, viz., the priority of their liens. The petition called upon defendant to disclose his interest or claim. The defendant saw fit to decline to do so and therein made default. He must, therefore, “be held thereby to have admitted that his interest therein is (was) subordinate to that of the plaintiff,” and “must be held to have confessed the cause of action of the plaintiff therein, and to that extent the decree (therein entered) is conclusive.” The only right then remaining to defendant Cowles in that suit was to have had his claim satisfied out of the surplus arising from the sale. The surplus was ample to have satisfied his claim. He could not refuse to obtain satisfaction from that and thereafter seek satisfaction out of the land which passed to the purchaser by the sale under that decree. Any other rule than this Avould permit parties duly served with summons in a court of general jurisdiction, in a case invoking subject matter of which the court has full and complete jurisdiction, to determine for himself the question as to whether he is a proper party, and the further question as to whether disputed priorities of himself and the plaintiff can be adjudicated by the court in that cast». Where the court
The judgment of the district court was right, and it is
Affirmed.