Lead Opinion
J. Ealston Grant brought this suit in the district court of Douglas county against William 0. Bartholomew to foreclose a lien upon lot 28, in Horbach’s First Addition to the city of Omaha, based on a tax-sale certificate issued to Grant’s assignor by the county treasurer of Douglas county on June 11, 1890, pursuant to a private sale then and there made by said treasurer of said real estate for the delinquent taxes thereon for the year 1888, said taxes and interest then and there amounting to the sum of |29.65. Grant j in his petition, also alleged that on June 11, 1890, and at various dates since that time, he had paid and discharged taxes levied and assessed upon said lot, and which were liens thereon, for years both prior and subsequent to the year 1888. The prayer of Grant’s petition was for an accounting of the amount due him on his tax lien, and for the taxes paid by him to protect such lien, and for a decree foreclosing it. As a defense to the action Bartholomew, in his answer, interposed, in effect, first a general denial, and then sat up, as separate and distinct defenses, certain new matter, which will be hereinafter noticed. There was no reply filed to this answer. The district court entered a judgment dismissing Grant’s action, and he has ap-' pealed.
1. The evidence discloses that the real estate in controversy was sold to Grant’s assignor by the county treasurer of Douglas county on June 11,1890, at a private tax sale for the delinquent taxes thereon for the year 1888; that these taxes — or part of them at least — were legally levied upon this property, were unpaid arid delinquent, and a. lien upon the property; that Grant, at that time and at various times subsequent thereto, paid and discharged other taxes which had been legally levied upon such property and were due and delinquent. The decree of the distinct court cannot, therefore, be sustained, unless it rests upon the allegations of new matter pleaded
2. As a defense Bartholomew alleged that the real estate was assessed in the year 1888 in the name of Abner French,; that he died in 1885, and therefore the assessment, upon which the tax sale was based, was void: In support of this contention Smith v. Davis,
3. Another defense was that the property in controversy, in 1884, was valued by the assessing officer at $350, and that subsequently the board of county commissioners of Douglas county, sitting as a board of equalization, without notice to Bartholomew, raised this assessment, to $385. The argument is that all the 1884 taxes levied against this property were void and that Grant, by paying the same, acquired no lien upon , the
4. Another defense was that for the year 1886 the assessor valued the property in controversy at $500, and the board of equalization, without notice to Bartholomew, raised it to $550. From what has just been said it follows that one-eleventh of the 1886 taxes on this property is void.
5. Another defense was that for the year 1888 the assessor valued the property in controversy at $800, and that the board of equalization, without notice to Bartholomew, raised the valuation to $1,200. It follows from what we have already held that one-third of the 1888 taxes upon this property is void.
6. Another defense is that the tax list of 1888 delivered by Hie county clerk to the county treasurer of .Douglas county had no warrant attached thereto, as provided by 'section 83, chapter 77, article 1, Compiled Statutes 1897, and therefore the sale made of the real estate in controversy for the faxes of said year was void for want of jurisdiction in the treasurer to make the sale, and in support of his contention appellee cites us to Reynolds v. Fisher,
Our conclusion therefore is that to invest the treasurer with jurisdiction to seize personal property for the satisfaction or enforcement of a tax lien thereon the warrant provided by section 83 of the revenue lаw must be attached to the tax list, but that the presence of such a warrant attached to the tax list is not essential to invest the treasurer with jurisdiction to sell real estate for the non-payment of taxes which are due and a lien thereon; that the treasurer’s authority and jurisdiction to make such a sale is derived from the express provisions of sections 10D and 113 of the revenue act. But assuming that this sale was void because the absence of the warrant from the tax list left the treasurer without authority or jurisdiction to make the sale, it does not follow that the purchaser at such attempted sale did not acquire a lien against the land attempted to be sold. Our revenue law must be looked at as a whole to ascertain its objects. The theory upon which the law was framed is that, if taxes upon real estate are not paid, the treasurer shall sell this real estate for the non-payment of such taxes; that he shall execute to the purchaser a tax-sale certificate, and if the owner does not redeem within a certain time, then the owner of this certificate may present that to the county treasurer and procure from him a deed for the lands based upon such sale; and that this deed, when executed and delivered, shall divest the title of the real estate owner to the land and vest it in the tax-sale purchaser or his assignee.
■ In the case at bar, if the sale by the treasurer for the delinquent taxes of 1888 was void as a tax sale within tbe meaning of the revenue law, then of course such a sale would not uphold the statutory treasurer’s tax deed
In Johnson v. Hahn,
In Pettit v. Black,
But it seems to be the contention of the appellee that though the appellant here may have acquired the liens which the public had against the real estate in controversy by his purchase at the treasurer’s alleged vo'id sale, still the appellant did not acquire the right to bring an action to foreclose this tax lien, because the county could not have maintained a suit to foreclose its lien. Of course, if this sale was void, the purchaser thereat acquired no other or different right than the public had, and the question therefore is, Can a county maintain an action in the courts to foreclose and enforce a lien which it has upon-real estate for the non-payment of delinquent taxes thereon? The legislatures of 1879 and 1881 enacted what are now articles 3 and 4 of our present revenue law. (Compiled Statutes, ch. 77.) By these enactments county authorities were expressly authorized to purchase from the county treasurer any real estate which had been advertised and offered for sale by him and remained unsold for want of bidders, and in the name of their county-foreclose the certificates of tax sale issued to them by the county treasurеr. But-these provisions of the revenue law have no application to the case at bar, as the real estate in controversy, under the theory of the appellee, has never been sold at all, and therefore the precise question is, May a county maintain an action in the courts to. foreclose the public’s lien upon real estate for the delinquent taxes thereon without the real estate having been first sold at public sale by the county treasurer? In 1875 the legislature enacted what is now article 5 of,our revenue law. 'Section 2 of this act provided that any person or corporation possessing a certificate of a treasurer’s tax sale may foreclose the same according
7. Another defense is that the property in controversy Avas sold for the delinquent taxés of 1888 only; that at that time there existed taxes against this property Avliich Avere delinquent and liens thereon for the previous years. The duty of the treasurer in selling property for the delinquent taxes of 1888 Avas to sell it for all taxes due and delinquent and Avliich Avere liens thereon for all previous years. He had no authority or jurisdiction to sell real estate for the 1888 taxes Avitliout including in such sale all taxes which-Avere liens upon the real estate for all prior years; and because of his omission to include in his sale taxes which were liens against the real estate for the years prior to 1888 the salé Avas void. But though, as Ave haAre already seen, such sale was void as a tax salé within the purview of the revenue act, it was nevertheless operative and effective as an assignment of the public’s lien on the real estate to the attempted purchaser thereat. It remains to be said that the purchaser at the
The decree appealed from is reversed and the cause remanded to the district court, not for retrial, but with instructions to enter a decree in favor of Grant as prayed in his petition, deducting, however,' from the amount found to.be due him one-thircl of the 1888 taxes paid by him and one-eleventh of the 1884 and 1886 taxes paid by him; the appellant to have interest on the amounts paid . by him, from the date of their payment until the date of the decree, at the same rate the taxes were drawing when paid; the decree to draw seven per cent interest.
Reversed and remanded.
Dissenting Opinion
dissenting.
I cannot assent to certain propositions upon which it is аttempted to found the rights of the appellant, and I shall now state my grounds of objection.
. Whatever rights or remedies the appellant possesses depend for their validity upon a private sale made by the county treasurer to him. It is not questioned that the treasurer had no warrant from the county clerk for commanding the collection of the taxes, when, as such treasurer, he sold the land and issued to appellant a certificate evidencing such sale. In the opinion to which I take exceptions it is sought to sustain the rights of the appellant to collect the taxes as assignee under said sale on the theory, first, that the warrant is not essential to clothe a treasurer with jurisdiction to sell real estate for the non-payment of taxes which are delinquent and a lien thereon — the county treasurer’s power to sell not being derived, as it is said, from the warrant, but from
In the case of Reynolds v. Fisher,
This abstract of these sections, upon comparison, serves to show the differences between the statutes of this state and those of Iowa, of which a synopsis is given in the opinion to which I shall now refer. Parker v. Sexton, supra, very properly was first in the citation of Iowa cases on this subject, for the others cited came after and followed in its wake. In the quotation which I shall now-make from this case it will be noted that there is no distinction, or room for distinction, between the power to sell-real and to sell personal property; and if its reasoning is to prevail in this state, it necessarily follows that Reynolds v. Fisher, supra, must be overruled. Again, in the statutory provisions of Iowa which we shall find noted in the opinión in Parker v. Sexlon, supra, there are special features which have been seized. upon to justify
It is Avorthy of special nоte that in the above quotation of the language reproduced from section 756 there were italicized the words “the tax list alone” in the clause “and the tax list alone shall be sufficient Avarrant for such distress.” This was a' provision referring to payment of taxes by distress and sale of personal property, and I cannot reconcile this construction with Avhat
In Gossett v. Kent,
Hannel v. Smith,
*701 “Auditor of State’s Office,
“Columbus, Ohio, June 5, 1843.
“Audi!or of Hamilton County-: You will carefully examine tlie foregoing list and strike from it all such, lands as you may' know tо be erroneously forfeited, taking care that none escape the. duplicate of taxation. You will then proceed to advertise and sell the remainder, according io the original act for the sale of forfeited lands and the amendatory act passed February 15, 1842, etc.
“John Brougi-i,
“Auditor of State.
“By J. B. Thomas.”
In the discussion of this certificate it was said in the opinion of the court delivered by Hitchcock, J.: “It is apparent from this document that it was annexed to a list, called a list of forfeited land, but it was not such a verification of that list as the law required. * * * This instrument is not only without the signature of the auditor, but it is not verified by his official seal, nor is it therein certified that the list to which it is attached is correct. It is defective, and would no more authorize the county1' auditor to sell the land contained in the list than a letter written by a clerk of a court and directed to a sheriff, informing him that a judgment had been rendered in a certain case, would authorize that sheriff to levy upon and sell the lands' of a judgment debtor.”
In State v. Woodside, 8 Ired. [N. Car.] 104, it was said: “To enable the sheriff to enforce by distress the collection of the taxes, from the individual who has given in his property as required by law, he must be provided with a copy of the returns in the officе of the clerk, duly certified by the clerk, that the taxpayer-may see the amount which he is bound to pay; otherwise he may refuse to pay and the sheriff cannot distrain his property. The certified copy is his warrant of distress to collect the taxes (Slade v. Governor, 3 Dev. [N. Car.] 365; Kelly v. Craig, 5 Ired. [N. Car.] 131), and it is the duty of the sheriff to apply to the clerk in proper time for such a copy.”
In Van Rensselaer v. Witbeck, 3 Seld. [N. Y.] 517, it was held that, as the warrant to the collector consists in part of the assessment roll, of which the property certificate is a necessary element, the want of the latter is a defect apparent upon its face and renders the process no protection to the officer.
. The case of Donald v. McKinnon,
The second proposition to which I cannot yield assent is that upon the theory of an equitable assignment, independently of the authority of a warrant, appellant was subrogated to the rights of the county with respect to maintaining an action for the recovery of the taxes which he had paid. The cases cited to show that where a sale whiсh failed to confer title nevertheless operated to subrogate the purchaser to the lights of the county were abortive sales, by reason of some defect in the procedure and not from lack of jurisdiction. It may be urged that the failure to attach the assessor’s oath to his assessment is not a mere irregularity, but as directly impairs the jurisdiction as does the failure to accompany the-tax books with a warrant to the treasurer. To my mind there is, between these a clear distinction as to the office of these instruments. The warrant is the treasurer’s sole authority to act, while the oath of the assessor is merely evidence of the correctness of the assessment. The assessment is essential to enable the board of supervisors to levy the taxes to be collected. It is a matter
Upon the proposition that when a special remedy is given by statute there can be no resort to the courts unless this course be expressly authorized, T have not felt called upon to invoke the decisions of the tribunals of states other than this. The doctrine was enforced in a tax case, Richards v. County Commissioners, Clay County,
In the outset I stated the propositions in which I could not concur, and have given reasons which, I think, justify my dissent. It would be alike useless to recapitulate these propositions and the arguments to sustain them. To me they are sufficiently convincing to prevent my concurrence in the opinion which is to determine this appeal; hence I do not feel called upon-to express my views Avith reference to other propositions than those which should be determinative of this case.