85 Neb. 722 | Neb. | 1910
Action in the district court for Deuel county to redeem the south half of the northwest quarter, and lots 3 and 4 of section 2, township 13, range 42 west of the sixth P. M., situated in said county, from a lien for taxes, and quiet title thereto in the plaintiff. The plaintiff had judgment, and the defendants have appealed.
In this case there seems to be no disputed question of fact; and, as the record is made up, it appears that on and prior to the 20th day of October, 1897, one W. H. Bruner, who was the plaintiff’s father, and who was a resident of Dodge county, in this state, owned the land in question; that on that day he conveyed it to the plaintiff by deed of general warranty, which he placed on record in Deuel county on the 6th day of November of that year, wit! i out giving her any information of those facts; that he shortly departed this life, leaving plaintiff the sole owner of said land; that thereafter certain taxes were levied and assessed against the premises, and that on the 2d day of April, 1900, an action was commenced by the county of Deuel to foreclose the lien of said taxes; that a decree of foreclosure was rendered therein, and the
It appears, without dispute, that the only service ever-made, or attempted to he made, in the tax foreclosure proceeding was by publication, based upon an affidavit of the county attorney of Deuel county, in which it was stated that the defendant Effie M. Herman, who is the plaintiff herein, was a nonresident of the state of Nebraska, and that service of summons could not be made upon her in this state. The fact that plaintiff at that time was a resident of Dodge county, in this state, where personal service of summons could have been made upon her, is not now disputed. It further appears that the plaintiff was not aware of the fact that she was the owner of the land in question, or of the pendency of the foreclosure proceedings, until some time in January, 1907; that thereupon she offered to redeem, and tendered defendant Barth, who then claimed to be the owner of the premises, all of the money he had invested therein, and that upon his refusal to accept the redemption money she promptly commenced this action.
The record thus again presents for our determination the question of the effect of a decree foreclosing a tax lion based solely on constructive service, where the owner of the land was a bona fide resident of this state upon whom service of summons could have been made at the time the foreclosure suit was commenced. Counsel for both parties have treated this as the sole question involved in this controversy, and we will so consider it. Counsel for the defendants, in an exhaustive and Avell,written brief, have strenuously urged us to adopt a rule herein at variance with the doctrine announced by our former decisions on this question, and hold that, because lack of jurisdiction does not appear on the face of the
In Hayes County v. Wileman, 82 Neb. 669, which was also an action to set aside a judgment foreclosing a tax lien, we said: “A judgment rendered on service by publication against a resident of this state, on whom personal service might have been had, is absolutely void. * * * A void judgment is, in legal effect, nothing. All acts performed under it, and all claims flowing out of it, are void. Such a judgment may be vacated at any time on motion made for that purpose by an interested party, and section 82 of our code has no reference to a void judgment.”
It is contended, however, by the defendants that the cases above mentioned should not rule this controversy, because it is claimed that in this case the land is now
In Humphrey v. Hays, ante, p. 239, the plaintiff filed a bill to set aside a decree foreclosing a tax lien, and certain deeds executed by the sheriff to the purchaser at the foreclosure sale, and by him to his immediate ■ grantee. It thus appears that the question of bona fide purchaser from the sheriff’s grantee was involved in that case. There the only service made or attempted to be made was by publication, and at the time of the commencement of the suit the owner of the land was a resident of this state and service of. summons could have been personally made upon him. In that case, as in this, the affidavit for service contained no statement which would authorize constructive service upon the land itself against which the taxes were assessed, and it was there held that the decree might be attacked in an action to redeem the premises from a lien for taxes, and to remove the cloud cast thereon by such void decree. It'thus appears that we have adopted the rule contended for by the plaintiff in this case, and we see no good reason for refusing to adhere to it. To hold otherwise would, in effect, deprive the plaintiff of her property without due process of law. In Chicago, B. & Q. R. Co. v. Hitchcock County, 60 Neb. 722, we said: “Where a court is without jurisdiction over a defendant, the judgment rendered is void, and may be attacked as such by any one whose rights are affected by its rendition, and its invalidity shown in any action in which it may be called in question.” German Nat. Bank v. Kautter, 55 Neb. 103. In Scott v. McNeal, 154 U. S. 34, it was said: “No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice
Finally, the equities in this case are all with the plaintiff. To hold that the tax foreclosure decree is sufficient to deprive her of her property, and leave her without remedy, presents a situation which a court of equity cannot sanction; while, if she is permitted, under our well-established rule, to have the decree of foreclosure set aside, and redeem the land by the payment of all of the taxes, interest, penalties and costs, together with the permanent improvements, if any, which the defendants have placed upon the land in question, affords them a
For the foregoing reasons, we adhere to our former decisions, and the judgment of the district court is therefore
Affirmed.