Leigh v. Green

64 Neb. 533 | Neb. | 1902

Pound, C.

The issues of fact and law involved in this appeal are sufficiently stated in the former opinion. Many of the conclusions reached in that opinion are acquiesced in by the parties, and have not been reargued. Four propositions, however, are insisted upon by counsel for appellee as having been overlooked or wrongly determined, and require consideration. These propositions are whether an affidavit for service by publication, made upon information and belief only, is sufficient; whether the description of the land in the published notice was sufficient to give the court jurisdiction in the tax foreclosure proceedings in question; whether, under a proper construction of sections 4 and 6, article 5, chapter 77, Compthed Statutes, foreclosure of a tax lien by suit against the land itself will bar lienholders not made parties to the proceeding and not served with process; and, finally, whether, if such is the proper construction of said sections, they are constitutional and valid, in view of the constitutional provisions, both federal and state, against deprivation of property without due process of law.

With respect to the first question, we may remark that it is by no means clear that the affidavit in question is to be treated as one upon information and belief. Examination of the many cases in which affidavits have been held insufficient because made upon information and belief only, discloses that in such cases the affiant stated that he believed so and so (Armstrong v. Sanford, 7 Minn., 34; Thompson v. Higginbotham, 18 Kan., 42) ; or that he had reason to believe and did believe it (Clarke v. Nebraska Nat. Bank, 57 Nebr., 314; Ex parte Spears, 88 Cal., 640, 26 Pac. Rep., 608; Ex parte Morgan, 10 Fed. Rep., 298); or that he was informed and believed so and so (Ex parte Rowland, 35 Tex. Cr. Rep., 108, 31 S. W. Rep., 651) ; or that, on his “best knowledge, information and belief,” certain facts were true (Ex parte Lane, 6 Fed. Rep., 34) ; or that certain statements in a pleading were true except as to statements on information and belief and that such statements were believed to be true. City of Atchison v. Bartholow, 4 Kan., 124; Attorney General v. Bank of Chenango, Hopk. Ch. [N. Y.], 671. In another class of cases, more nearly like the one at bar, the affiant states that certain facts are true, as he believes, or as he is informed and believes. State v. County Commissioners, 49 Nebr., 51; State v. Mayor, 4 Nebr., 260; Clarke v. Nebraska Nat. Bank, 57 Nebr., 314; Mowry v. Sanborn, 65 N. Y., 581. The ease at bar differs from all of these. The statements in the affidavit are made positively, bnt at the end, after stating directly that the owner of the land in question is unknown, there is the further statement “all of which I verily believe to be true.” ^t will be seen that whereas, in the cases cited, the affiant did not make any positive statements of fact, but merely stated that he believed, or was informed and believed that certain facts existed, in this case the statements are made positively and directly, and there is merely an additional statement that affiant believes them to be true.-^Does this further statement qual-. ify or detract from what goes before? In Webster v. Daniel, 47 Ark., 131, 139, 14 S. W. Rep., 550, the affidavit stated “that said Peter Webster has left the county of his residence to avoid the service of a summons as shown by the return of a constable to the writ of summons issued herein.” The court held that this was not an affidavit as to what the return showed, nor to belief based on information derived from the return, but was positive, and referred^ to the return as evidence only. In Re Keller, 36 Fed. Rep., 681, 685, a complaint in extradition proceedings stated an offense positively and directly. A statement was added to the effect that the complainant verily believed the facts stated to be true. The court said: “If it is conceded that this court can construe this pleading and reject it, still I think it is not faulty. It is a statement of a fact which the deponent, in testifying to, verily believes to be true. A man SAvears to what he believes to be true; and when he states a fact under oath, he says he verily believes it to be true. I do not think it is faulty on that account. I think’ this affidavit is sufficient.” In Pratt v. Stevens, 94 N. Y., 387, the court said: “The addition of the words To deponent’s best knowledge, information and belief,’ does not modify or detract from the Words previously employed. The general rule is that an oath taken before a competent officer merely Aerifies truth of the facts stated, according to the best knowledge, information and belief of the affiant. The positive affirmation of the fact sworn to in an affidavit is in most cases supposed and understood to be according to the best knowledge, information and belief of the witness.” ^The true criterion would seem_^ to lie in the willingness of the witness to> malee a positive statement. ""If his information and knowledge are such that he will make a positive statement of the fact in question upon oath, his evidence is to be received, though the weight to be given it might be small by reason of the nature and extent of the information and knowledge from which he testifies. On the other hand, if he has a belief or opinion, but is not so completely satisfied of the fact that he will testify to it directly, but merely states his belief, then the bare statement of what he believes, but will not state positively upon his oath, is not to be received, unless the cas£ is one where an affidavit as to his belief only is required. In the case at bar, there is a^lirect and positive statement that the owner is unknown. *The further statement that affiant believes it to be true does not detract therefrom? He not only believes it, he is willing to testify to it positively. This is much more than a mere statement of his belief. .But construing the affidavit with counsel for appellee, and giving to the words with which it closes all the effect claimed for them, we agree to the conclusion reached at the former hearing, and think it sufficient/ Where a showing by affidavit is required as to facts which are neces-" sarily matters of information and belief, an affidavit on information and belief ought to suffice/ The statute should receive a construction in accordance with common sense. It was not intended to require perjury, and, as it requires affidavit to matters involving legal opinion and conclusions of la,AV and fact, it must contemplate that such 'affidavit will be made upon the only basis on which such opinions and conclusions can be reached. As Albert, C., said in the former opinion, with reference to the required shoAA'ing that seiwice can not be made in the state: “In the very nature of things, upon this point at least, the affiant, whatever the wording of the affidavit, can never have positive knowledge. * * * To expressly state that which, in the absence of such statement, would be necessarily implied, affects only the form and not the substance of the affidavit.” This is no less true of the statement that the owner of the land in controversy is not known. In a trial where numerous witnesses are successively examined the several facts and circumstances may be made to appear by competent proof, and the trier of fact may draw the proper inference therefrom. But where one man is to make affidavit to the conclusion, he must in fact state the belief which the information in his possession gives rise to, whether he expressly says so or not; otherwise the required affidavit could never be made. In Colton v. Rupert, 60 Mich., 318, 326, 27 N. W. Rep., 520, the court say: “In such case an affidavit upon information and belief is all that could reasonably be required. To require that such proof should be established by such evidence as would preclude all reasonable doubt, or of .such character and weight as would preclude a possibility of error, would deprive this provision of the statute, in a large majority of cases, of any efficacy, and result in a failure of the remedy designed to be afforded by the law. The Iuav itself is based upon the necessity of the case, in order to enable parties to reach and deal with property within the jurisdiction of the court.” A similar observation is made in Snell v. Meservy, 91 Ia., 322, 59 N. W. Rep., 32, and the great Avoight of authority sustains this view. See, also, Trow v. Gaskill, 10 Ind., 265; Bonsell v. Bonsell, 41 Ind., 476.

We do not think the cases of Clarke v. Nebraska Nat. Bank, 57 Nebr., 314, and Mowry v. Sanborn, 65 N. Y., 581, conflict in any way with the foregoing proposition. In Clarke v. Nebraska Nat. Bank the statute required proof of certain facts to the satisfaction of the judge. These facts were capable of positive proof, directly or by circumstances. There was no requirement that the proof be by affidavit solely. The statute expressly stated that it might he made by affidavit of the judgment creditor “or otherwise.” It was the clear duty of the moving party in that case to furnish proof. If he could not do so by his OAvn positive affidavit, he might do so by some other means. To furnish an affidavit to conclusions which proof might establish, stating them not as facts, but as matters of belief and opinion, was not enough. The distinction between such a case and the one at bar is manifest. Nor is Howry v. Sanborn, supra, in point. There the affidavit was not as to non-residence generally, but as to the exact place where: persons, whose residence was ltnown, in fact resided. Such known fact was capable of positive proof.

It is next contended that the land was not made a party to the foreclosure suit, and that the court did not get jurisdiction over it, because it was insufficiently describedf In the title to the petition and in the published notice it is described as the “northwest quarter of section 27, township 31, range 3, west sixth principal meridian,” without stating in what county or state, nor whether the township in question is north or south of the base line. So far as the petition is concerned, however, the objection is clearly untenable for the reason that in the body of the pleading it is expressly stated that the land lies in Knox county, Nebraska. We think the notice sufficient alsdf The notice sets forth that plaintiff claims to have purchased said land for taxes at a tax sale held in Knox county, Nebraska. Thus the context shows that land in this state is referred to, not merely by the venue of the proceedings, but by the nature of plaintiff’s claim. Although the description is equally applicable to another tract situated in the state of Kansas, there is but one tract in this state to which it can possibly refer. In Fanning v. Krapfl, 68 Ia., 244, 26 N. W. Rep., 133, a published notice was directed to “P. T. B. Hopkins, wife of John C. Hopkins.” Said defendant’s true name was “T. P. B. Hopkins.” The court said: “The notice should describe the party to whom it is directed with such certainty as that neither he, nor other persons acquainted

with or knowing him could reasonably be misled by it as to the person for whom it was intended. * * * If the notice had come to her attention, she would have learned from it that it was intended for the wife of John 0. Hopkins, which was the name of her own husband, and that it related to an interest of which W. R. I. Hopkins, who held the property now in question in trust for her, was trustee. She could hardly have fathed to learn from it that she was the identical person for whom it was intended, and she could not reasonably have been misled by the transposition of the initial letters of the Christian name Avliich occurred in it.” So in this case. No one who read the notice could reasonably suppose that it referred, or might refer, to lands in Kansas. There was a tract answering the description in Knox county, Nebraska, and the notice set forth that a lien was asserted against the tract by virtue of a tax sale held in said Knox county. No one could Avell be misled by the omission of the word “north” under such circumstances. The same kind of description has been passed on several times where contained in deeds, and has been upheld always when there was but one tract ansAvering the description in the state, if the context or circumstances indicated the state sufficiently. Long v. Wagoner, 47 Mo., 178; Beal v. Blair, 33 Ia., 318; Butler v. Davis, 5 Nebr., 521. It may be admitted that the question to be determined in these cases was somewhat different. But the reasons assigned seem to us to be applicable. If the whole notice makes it clear whát lands are referred to, we think it is enough. This holding does not conflict with the case of Cohen v. Trowbridge, 6 Kan., 385. In that case a notice failing to state whether the range in which the tract attached lay was east or Avest of the meridian was held invalid. But there are tAvo ranges numbered 18 in Kansas, and hence two tracts-in that state were within the terms of the notice. The true rule is announced in Fanning v. Krapfl, supra. A great many titles depend upon^foreclosure proceedings based on service by publication. If no reasonable person can be misled by a description, we ought not to imperil titles by criticising it over minutelyf

Coming now to the construction of sections 4 and 6, article 5, chapter 77, Compthed Statutes, we are satisfied that the former opinion is in every way a correct exposition thereof, and that it should be adhered to. That the term “owner,” as used in said section 4, refers to persons having estates in the land and not to incumbrancers and lien-holders, is made very plain. In what cases it may be said that the owner is “not known” within the meaning of said section, is a question of some difficulty. Is it meant that the condition of the title must be such that with ordinary diligence one who investigates can not pronounce in whom it lies? Or is it meant that the person in whom the title appears to be can not be identified, located, or found? If the latter, to whom must he be unknown—the plaintiff or the community generally in which the land lies? Or must he be absolutely unknown? As we have in this case a collateral attack on the decree of foreclosure, it may not be necessary to go deeply into the questions to which this apparently simple phrase gives rise. ^ We think that the owner of land is “not known” within the meaning of said"" section, AAthenever the holder of a tax certificate is unable by reasonable diligence and inquiry in the neighborhood of the land in question to ascertain the whereabouts of the person or persons appearing to have legal estates therein, or to ascertain who have such estates.'" In the latter case he can not know AAdiom to make parties; in the former, he can not know how to serve them, since he does not know, nor can he ascertain, whether they are residents or nonresidents of the state, and, if residents, where they are to be reached. Hence, when the owner of the land is not known to the holder of a tax certificate in either sense, and can not be found upon reasonable inquiry, the holder of such certificate may make the land a party to foreclosure proceedings. In such case, for reasons already set forth, allegations in the petition and an affidavit for service by publication on information and belief, to the effect that the owner is unknown are sufficient against collateral attack. . Van Fleet, Collateral Attack, secs. 245, 247.

The plaintiff in the tax-foreclosure shit joined one Root, as a party defendant, alleging that he claimed some interest in the land; and we have next to consider the effect of this joinder. It has been seen that all persons having interests in the land in controversy are not for that reason “owners,” within the meaning of the statute; hence Root might have had an interest by way of lien or incumbrance, and yet the allegation that the owner was unknown might have been entirely true. So long as the land was properly made a party, it was unnecessary to join parties who merely claimed interests short of ownership. They would be cut out by decree and sale without being joined, under express provisions of the statute.''' We do not think that the nature of the proceeding was changed in any way by joining Root. ^ The land was properly made a party and all necessary steps to get it before the court were duly had. Whether the joinder of Root wa.s irregular we need not decide. The important point here is that the land was sued. If the plaintiff sued another defendant also, the propriety of such course is not to be reviewed collaterally. It may be remarked, however, that parties claiming interests in the land are often joined in cases like the one under consideration in other jurisdictions, and no question appears to have been made but that the proceedings are nevertheless in rem, and bind others claiming interests in the property, who have not been joined. Pritchard v. Madren, 24 Kan., 486; Hunger v. Barlow, 39 Ia., 539; Nash v. Church, 10 Wis., *303.

Upon the question as to the effect of making the land a party and of sale under decree against the land, we are entirely satisfied with the construction put upon the statute in the former opinion. The provisions of the statute are express that, “in case the land itself is made defendant in the suit, the deed shall be an absolute bar against all persons, unless the court proceedings are void for want of jurisdiction; the object and intent of this section being to create a new and independent title, by virtue of the sale, entirely unconnected with all prior titles.” Compthed Statutes, ch. 77, art. 5, sec. 6/ There is every reason for construing this section to mean what it says. * As remarked by Albert, C., in the former opinion, the procedure for enforcing tax liens is a part of the revenue system of the state. We can not assent to the argument of counsel that, after the taxes have been sold to a private purchaser, the state loses all concern with the matter, and it becomes purely a case of enforcing an ordinary lien, to be governed by the ordinary principles of private law. The state must provide some means for speedy collection, if .it expects to sell its taxes. If the necessities of public affairs compel the state to sell taxes in order to get in revenues quickly, they also require that every proper inducement be held out’ to tax-purchasers in order that taxes be readily sale-able. The provision for foreclosure by the purchaser is much less drastic than the common method of conveying the land outright to the tax-purchaser by an administrative act, without any judicial inquiry whatever. Moreover, there is nothing novel or peculiar about the proceeding. It ' is known to the laws of many states, and has been given the full force and effect intended by the statutes. Pritchard v. Madren, 24 Kan., 486; Chauncey v. Wass, 35 Minn., 1, 30 N. W. Rep., 826; Ball v. Ridge Copper Co., 118 Mich., 7, 76 N. W. Rep., 130; Freeman, Judgments, sec. 607. We agree to the conclusion reached at the former hearing that, if the land urns properly made a party and jurisdiction over"-” it was duly acquired by publication of notice, a sale under decree of foreclosure created a new and independent title, and barred all pre-existing interests or liens.

The statute expressly awards to the purchaser at tax sale a remedy by suit against the land itself, available whenever the owner is not known, whereby all persons claiming interests in the land may be barred completely on sale under decree of foreclosure/ Iii so far as they give this remedy to the purchaser, are sections 4 and 6, article 5, chapter 77, Compthed Statutes,in conflict with provisions of the state and federal constitutions against depriving per«-^sons of property without due process of law? We think not.^Fhe power of the state to levy taxes obviously carries with it the power to collect them, and to provide all means necessary or appropriate to insure and enforce their collection.^ “What method shall be devised for the collection of a tax, the legislature must determine, subject only to such rules, limitations, and restraints as the constitution of the state may have imposed. Yery summary methods are sanctioned by practice and precedent.” Ooolev, Constitutional Limitations, *521, 6th ed., 645. Sale and issuance of a tax deed creating a new title and cutting off liens and incumbrances (Bagley v. Castile, 42 Ark., 77; Chambers v. People, 113 Ill., 509) ; levy and sale by the tax-collector (Springer v. United States, 102 U. S., 586; Sawyer v. Dooley, 21 Nev., 390, 32 Pac. Rep., 437) ; issuance of a warrant by the treastirer, and levy thereunder (Weimer v. Banbury, 30 Mich., 201); making taxes a paramount lien, cutting out prior claims and incumbrances (Lydecker v. Palisade Land Co., 33 N. J. Eq., 415) ; imprisoning a delinquent collector on a writ of extent issued summarily (In re Hackett, 53 Vt., 354); issuance of execution'by the tax-collector (State v. Allen, 2 McCord [S. Car.], *55) ; seizure and forfeiture of the property taxed (Henderson’s Distilled Spirits, 14 Wall. [U. &.], 44),—are some of the summary modes of collection which have been upheld. Also, in Murray v. Hoboken Land & Improvement Co., 18 How. [U. S.], 272, a statute authorizing a warrant to issue against a public debtor for seizure of his property, upon an ascertainment of the amount due by administrative officers, was held constitutional. As was said in Re Hackett, supra: “Taxes are the life-blood of government. Unless duly assessed, collected, and paid over to the proper disbursing officer, its functions are paralyzed, and disintegration and anarchy are imminent.” In consequence, so long as the tax is valid, all manner of summary proceedings to collect it have always been sanctioned, the statute providing for assessment and levy being held to afford due and sufficient notice. Counsel admit this, but contend that summary methods can be employed only by the state itself, acting directly. They say: “The summary method by which a party may be divested of his interest in the lands without judicial procedure can be justified only when he is withholding moneys belonging to the state; beyond that the principle can not go.” Again: “The foreclosure of the lien of a tax certificate by judicial proceeding by a private party to realize the amount due Tinder his lien is a judicial proceeding simply, in which the rights and powers of the sovereignty are not involved.” W'e can not agree. The state must have its revenues. There is no summary administrative proceeding for collection of taxes upon land available under our statutes. Foreclosure is the sole method of enforcement. But the st^/te can not wait the slow process of foreclosure and sale. Selling the - tax and authorizing the purchaser to collect it is a method of collection almost as old as taxation itself.- ''Under our statute the state sells to a purchaser and gives to' him the same remedy it would have had had it chosen or been able to wait. It is obvious that purchaser’s might not buy unless given some sure and speedy remedy.'' The interests of*» the state and its necessities demand that great inducement's be held out to tax purchasers. ^ Otherwise the state would not get in its revenues. Hence Ave see no reason why a remedy which the state may employ directly to collect its revenues may not be awarded to an assignee to whom the state has been obliged to sell ,its claim in order to realize promptly thereon. The right of the state to exercise other powers through individuals is undoubted. In the Slaughter-House Cases, 16 Wall. [U. S.], 36, 64, Miller, J., said: “If this statute had imposed on the city of New Orleans precisely tire same duties, accompanied by the same privtheges, which it has on the corporation which it created; it is believed that no question would have been l’aised as to its constitutionality. In that case the effect on the butchers in pursuit of their occupation and on the . public would be the same as it is now. Why can not the legislature confer the same powers on another corporation, created for a lawful and useful public object, that it can on the municipal corporation already existing?” The exercise of the right of eminent domain by corporations is an every-day occurrence, and section 39, article 2, chapter 98<x, Compthed Statutes, allows it to private individuals in furtherance of works of irrigation. If the state could authorize the county to proceed by suit against the land in case the delinquent owner was unknown, it could equally authorize a private purchaser of the taxes to maintain such proceeding, and for the same reasons.

We should not forget, however, that the proceeding in question is not summary in the sense in which that term may be applied to the usual run of methods of collecting taxes. It is not as if the purchaser were authorized to advertise and sell the land, or to have the sheriff do so on request. He must wait the expiration of a long period of redemption. He must then bring a suit, make all proper parties if the owners are known, publish due notice upon showing by affidavit if they are not, make proper proofs of the levy and sale and the amount due to a. court in a proceeding in which every person interested may intervene, and then, after decree of foreclosure, await the due course of judicial sale and confirmation. The opportunities afforded to all persons affected to make known their claims are ample. They have no right to lie by and suffer the taxes to get many years in arrear, without exercising any diligence to protect their claims.

We recommend that the former judgment be adhered to.

Barnes and Oldham, CO., concur.

By the Court: For the reasons stated in the foregoing opinion, the former judgment is adhered to.

Reversed and remanded.