27 Neb. 829 | Neb. | 1889
This is an action to foreclose a tax lien. On the trial of ¡the cause the court found the issues in favor of the defendant and dismissed the action. The plaintiff alleges in his petition that “ the defendant, Amsdell Sheldon, is the owner of certain real estate described as follows: the north half of the northeast quarter of section 1, township 9, range 12, lying and being in Otoe county, state of Nebraska; that the said real estate was subject to taxation for the years 1861, 1862, 1863, 1864, 1865, 1866, 1867, and was duly and legally assessed and valued for taxation for the said years, and for each of said years; that the taxes for each of the said years were duly levied thereon; that
The defendant in his answer alleges that he purchased the land in question at tax sale, for the years 1870, 1871, 1872, and that on the 4th day of September, 1873, he obtained a tax deed from the treasurer of said county for said land, under the tax sale thereof, for the year 1870, which deed was duly recorded, and that the defendant entered into the possession of said land and has since paid all taxes thereon, and has been in the open, exclusive, notorious, adverse possession of said premises to the present time.
The facts stated in the answer are denied in the reply.
Section 180 of the revenue law of 1879 provides that “ If the owner of any such certificate shall fail or neglect either to demand a deed thereon, or to commence an action
The construction of the' above section was before this court in Helphrey v. Redick, 21 Neb., 80, and it was held on the facts in that case that the action was not barred, as five years had not elapsed within which an action could be brought. In Parker v. Matheson, 21 Neb., 546, the question was again before the court, and it was held that the action was barred. In the latter case the sale took place on the 5th day of February, 1878, and the action to foreclose the lien was instituted February 21, 1885. It is said: “At the time of the sale the law of 1875 (Laws 1875, 107) was in force, but the act of 1879 must apply to the foreclosure wherein the former act has been changed or amended. It is urged that a material difference in the two acts is that, by the act of 1875, the foreclosure might be had notwithstanding the tax deed, and by the act of 1879 he is entitled to foreclose instead of demanding a tax deed. This is tr.ue, bnt he could not demand a tax deed until after the expiration of the two years; therefore the landowner had that time within which he could redeem, without consulting the purchaser, and the right to foreclose did not accrue until the right to redeem by the payment of the money to the treasurer ceased. Under the rule stated in Helphrey v. Redick, supra, the statute began to run February 6, 1880. Five years from that time the cause of action would be barred.”
It was the evident intention of the legislature to limit the time in which to bring an action for the foreclosure of tax liens to five years from the time the cause of action accrued. This is in conformity to the general- purpose of the statute of limitations — that stale claims shall be
But it may be said that the statute declares taxes upon real estate to be a “perpetual lien” and therefore they can be enforced at any time. This provision of the statute, however, is to be construed in connection with that providing for a sale of the land at a specified time for the taxes due, and if not redeemed after notice to that effect within two years thereafter, then the tax purchaser may either take a tax deed or foreclose his tax lien. In either case, if he seeks the aid of a court of equity to enforce his lien, he must do so in five years. The word “perpetual,” therefore, was not intended to continue the delinquent taxes in force against real estate after the statute has barred a
Judgment affirmed.