96 Neb. 430 | Neb. | 1914
Plaintiff instituted this suit in the district court for Lincoln county to quiet his title to the west half of section 25, township 12 north, of range 28 west of the 6th P. M., in that county, against an alleged void tax deed. Defendant demurred to the petition upon the grounds: (1) that it does not state facts sufficient to constitute a cause of action; and (2) that it shows upon its face that more than six years had elapsed since the time defendant obtained his treasurer’s tax deed and went into possession of the land involved. The demurrer was sustained, and, plaintiff electing to stand upon his petition, the suit was dismissed. Plaintiff appeals.
The petition alleges that plaintiff is the owner in fee of the lands in controversy, under mesne conveyances from the United States to the Union Pacific Railway Company
The point upon which this case turns is whether the rights of the parties are to be in all respects determined under the law in force in 1902, when the defendant purchased the land at tax sale and obtained his certificate, or under the law in force in 1904, when he obtained his. tax deed. The courts of other jurisdictions are not harmonious on this point. We are relieved of the necessity of considering this conflict in the authorities elsewhere,, for the reason that we think the question has been settled by this court in Whiffin v. Higginbotham, 80 Neb. 468. In the syllabus we held: “Section 242 of the revenue. act of' 1903 (Comp. St, ch. 77, art. I) saves to the parties purchasing land at tax sales held prior to the passage of that act all rights, vested or otherwise, extended to them by the statute in0 force when the purchase was made.” The section.of the statute there referred to is in the following-language: “Nothing in this act shall be construed to release, discharge, or in any manner affect the validity or-the collection of any tax heretofore assessed and levied under the revenue laws in force prior to the taking effect of this act, nor shall the same affect pending actions; founded thereon or causes of action which may have accrued; but all rights in relation to such taxes and the collection thereof and all rights that may have accrued to persons under the revenue laws of this state are hereby saved and reserved.” The opinion then states (p. 470 ) :• “Defendant argues that this section saves to the defendant nothing but vested rights, and that it does not cover or include the remedy for enforcing such rights or the time within which an action to enforce his remedy should be brought. The law has been well settled that the legislature cannot take away or affect vested rights, and this has been so long and well established that we cannot presume the legislature attempted by - this section to reserve to a tax sale purchaser a right of which it had no power to deprive him. If the section is construed to mean that it
We therefore hold that the rights of the parties in this case must be determined under the revenue law of 1901 (chapter 77, art. I) in force at the time defendant purchased the land in controversy at tax sale and obtained his tax sale certificate. This being true, then, under the facts pleaded in plaintiff’s petition as above set out, which are expressly admitted by the demurrer, defendant’s tax deed is void and conferred upon him nothing more than color of title. Plaintiff, therefore, had a right to proceed to quiet his title and to redeem at any time within ten years. Having proceeded within that period, the court erred in sustaining the demurrer and dismissing the suit.
The judgment is therefore reversed and the cause remanded, with directions to overrule defendant’s demurrer, and for further proceedings according to law.
Reversed.