State ex rel. Cunningham v. Romero

OPINION OP THE COURT. TiANNA, J. (after stating the facts as above.) The only question for our determination is whether an owner of real estate which has been sold to the county for delinquent taxes for two or more 3rears prior to April 1, 1915, ma3>- redeem the' same by the payment of the amount for which the certificate of sale has been sold and assigned hv the county to a third party, or whether such owner must pay the original amount for -which the property was sold to the county. [1] It is the contention of appellant that the Glen Investment Company, the purchaser of the tax certificates in question, is entitled to receive not only the amount paid for the certificates, but also the penalties, interest, and costs which had accrued thereon, although such penalties, interest, and costs had not, in fact, been paid to the county by the purchaser of the certificates. The question is purely one of construction of our statutes, and there is no controversy over the fact that the sale of the property described in the certificates for delinquent taxes was made pursuant to the provisions of section 5498 of the Codification of 1915, which section provides: “Each parcel oí real estate offered for sale shall be struck off to the highest bidder for cash, but if such real estate cannot to be sold for the full amount of the taxes, penalty and interest due thereon or if there should be no bidder for the same, the whole amount of the property on which the taxes have been levied shall be struck off to the county for such total amount, and the collector shall make an entry on the assessment book of the fact, opposite to the name of the person assessed, and shall be credited with the amount of tax thereon in his usual settlement. In no case shall such interest be released, abated, reibated or reduced, but it shall have all the force and effect of the original tax and become part thereof, and any failure on the part of the county treasurer to add such interest to the tax at the time of collection thereof shall subject him to a penalty of double the, amount thereof for which he and his bondsmen shall be liable, to be-recovered by suit brought in the name of the state. Onei half of the interest or penalty collected upon taxes shall be paid to the state treasurer for the credit of the state interest fund, and the other half shall be credited to the county interest fund: Provided, the county shall not by the sale aforesaid acquire title to such real estate, but shall sell and assign the duplicate tax certificate, as provided in' section 5500.” By section 5500 it is provided that: “When any property shall be struck off to the county as provided in section 5498, it shall be the duty of the county treasurer to sell and assign the duplicate- certificate of such sale to any person who will at any time pay the full face value thereof, with accrued interest, and if the same cannot be sold at private sale before the regular sale of property for delinquent taxes in the next succeeding year, such certificate shall be sold at public auction at the time of such delinquent tax sale to the highest bidder* for cash by the county treasurer then in office, but in no case shall such certificate of sale be sold for less than the full, a'mount of the taxes and interest due after noticel stating the time and place of sale, a brief description of the property, the amount due and the name of the person against whom the tax was assessed, or that it was assessed against unknown owners, if such be the case, shall have been published for four consecutive weeks, as provided in section 5495. “It shall be the duty of the treasurer', immediately after the sale of any such duplicate tax sale certificate, if the postoffice address of the owner or agent of the owner is known, to mail a notice to such owner or agent informing him of the sale of such duplicate certificate of taxes upon his property, and giving the name-of the, purchaser and the a'mount paid therefor, and the surplus, if any, over and above the taxes, penalty and accrued interest, and that unless he shall redeem the same within three years from the date of recording of said duplicate certificate, which with the assignment thereof by the treasurer, must be recorded in the offifee of the county clerk, a deed therefor will be executed and delivered to the purchaser or his assigns. The owner of any such real estate may, at any time prior to the sale of such duplicate certificate, redeem the same by paying to the treasurer the amount of such taxes, penalty, interest and costs.” It is to be noted from the foregoing section that it was made the duty of the treasurer after the sale of any such duplicate tax certificates to mail -a notice to the owner or agent of the property, informing him of the sale of such certificate, and giving him the name of the purchaser and the amount paid therefor, and advising him that unless he shall redeem within three years from the date of recording of said duplicate certificate, a deed will be executed and delivered to the purchaser or his assigns. ' 'By section 5502, Code 1915, subsequently repealed, it was further provided that the treasurer should give the purchaser a certificate of sale containing a description of the property sold, stating the name of person or persons to whom the same was assessed, and the amount paid therefor, and that ^ the property was sold for taxes subject to the right of the owner to redeem the property within three years by paying the amount paid at such sale, with interest thereon at the rate of 1 per cent, per month. This latter section of the Codification of 1915 was amended by chapter 18 of the Laws of 1915; the amending act being ah entire substitution for said section 5502, and reads as follows: “Upon payment of the amount for which any real estate is sold, the collector shall give to the purchaser a certificate o sale, containing a description of the property sold, stating the name of the person or persons to whom the same was assessed or that it was assessed to unknown owners, as the case may he, the amount paid therefor, and- that it was sold for taxes,, with the date of sale, and that the sale is subject to the right of the owner to redeem the property within three years by paying the amount paid at such sale with interest thereon at the rate of one> per cent, per month, which certificate must be recorded in the office of the county clerk in a book kept for the purpose of recording such certificates. Such former owner may at any time, within three years from the date of such certificate, provided for in section 36 hereof, redeem the property by paying to the county treasurer for the use of the purchaser, or his assigns, the amount of the puchase money with interest thereon at the rate of one per cent, per month, together with1 any taxes which may have been paid upon the property by the purchaser or his assigns, with interest at the same rate, and such former owner may retain possession of the property until the time of redemption has expired. In all cases where any property shall have beep, bid in by any county subsequent to March 16th, 1905, and prior to March 18th, 1913, in accordance with chapter 22 of the Laws of 1899, and the duplicate certificate -of such sale shall not have been sold by the county-treasurer in conformity with the provisions of chapter 134 of the Laws of 1905, or some amendment thereof, the person or persons, their heirs, executors or assigns, who owned said property at the time the same was bid in by such county' are hereby declared to have the right of paying the amount of taxes for which said county bid in said property unto the county treasurer of said county at any time prior to January 1st, 1916, and it shall be the duty of said county treasurer upon receipt of the amount of such taxes to issue unto such person or persons, their heirs, executors or assigns, as the case may be, a certificate of redemption of said property, which certificate shall be conclusive proof of such redemption in any case hereafter commenced. Real estate sold for taxes, whether struck off to the county or' to others, shall continue to be assessed in the name of the original owner, or to unknown owners, as the case may be, until the redemption period shall have expired, and taxes thereon for the time during which said certificate or duplicate certificate shall be held by the county or a purchaser shall be a lien upon said property' until paid. Any final judgment for the sale of real estate for delinquent taxes, rendered according to law, shah estop all parties from raising- any objection thereto which existed at or before the rendition -of such judgment and < have been presented as a defense in such action in the court wherein the same was rendered, and as to all such questions the judgment shall be conclusive evidence of its regularity and validity in all subsequent proceedings, whether collateral or direct, and no bill of review or other action attacking the said judgment shall be entertained by any court except in cases where the taxes had been paid -or the real estate was not liable for tax or assessment. “Whenever any lot, parcel or tract of land, or any interest therein, or any improvement thereon, shall have been bid in prior to April first, 1915, by or for any county at tax sales made pursuant to law for two -or more years, and the treasurer of such county has been unable to sell^the certificates or duplicate certificates therefor so as to realize the total amount of the taxes, interest, penalty and costs due upon such property, said treasurer may sell the same at public auction to the highest bidder for cash, who shall bid not less than the minimum sum therefor which the county commissioners of said county, by order duly entered upon their records at any regular meeting, may have decided to accept. And at any time prior to the date fixed for such sale in the notice given by the treasurer the owner of such property may redeem the same from such tax sales by paying to the treasurer the minimum amount so fixed by the county commissioners, such sale of said certificates or duplicate certificates, or such redemption by the owner, shall release said property from the lien of all delinquent, taxes, penalties, interest and costs standing against the same at the date of such sale or redemption.” By the second, paragraph of the amendatory act of 1915, it is quite clear that at any time prior to the date fixed for the sale by the treasurer of the tax certificate, the owner of the property may redeem the same from tax sale by paying- to the treasurer the minimum amount fixed by the county commissioners, but the question is whether or not he can tender this minimum amount after the treasurer has sold the certificates and assigned the same to a third party for the minimum amount fixed by the board of county commissioners. It is clear that no attempt to redeem was made prior to the sale of the certificates. Appellant makes an able argument to the effect that a county necessarily becomes the purchaser of the property under the provisions of section 54-98*, paying therefor the total amount of the taxes, interest, penalties, and costs against the property, and- that, therefore, this amount is the amount which must be paid in order to redeem the property from the tax sale, even though the certificate has been assigned to a third person, and that any other construction would defeat the statute. In other words, the argument is that unless the county is a purchaser, and the taxes, interest, penalties, and costs the purchase money, there never has been and there never can be a sale for delinquent taxes to counties under the law, and that the plain purpose of the statute would be defeated by taking from counties the remedy given by the statute for the enforcement of delinquent taxes upon real estate; and, further, that certificates of tax sales could never be issued to the county under the-statute for the lack of any method whereby to pay the amount for which real estate is sold for delinquent taxes. It is therefore forcibly argued that the only right of redemption that the relators can claim under the facts alleged in their petition is to be found in section 5502, as amended, which is by paying to the county treasurer for the use of the purchaser, or his assigns, the amount of the purchase money (paid by the county), with interest thereon at the rate of 1 per cent, per month, together with any taxes which may have been paid upon the property, together with interest at the same rate. Thé fallacy of this argument, however, lies in the fact that the purchaser referred to in the act of 1915 is the purchaser of the tax certificate, who is authorized to acquire the certificate at a minimum ’ amount to be fixed by the county commissioners under the terms of the act. It is our conclusion that the terms '“purchaser and amount paid therefor” refer to the sale of the certificate by the county. The act does not provide that the taxes, with interest, costs, and penalties, shall be the amount specified in the certificate to be issued by the county treasurer, but .does provide that the amount paid for the certificate shall be set out in the tax certificate, which, taken together with the other provisions of the act as to the sale of the property for taxes and the right of the owner to redeem within three years, would clearly indicate that the owner is only required to tender the amount paid by the purchaser of the certificate, together with the interest of 1 per cent, per month as provided by the act in question. We therefore conclude that the owner of property may redeem the same from a tax sale within three years from the date of the certificate by paying the amount paid at such sale, with interest at the rate of 1- per cent, per month, together with any taxes which may have been paid upon the property by the purchaser of the tax certificate, with interest at the same rate. All doubt as to the correctness of our conclusion is disposed of by an examination of the concluding sentence of the second paragraph of chapter 78 of the Laws of 1915, which reads as follows: “And' at any time prior to the date fixed for such sale in the notice given by the treasurer the owner of such property may redeem the same from such tax sales by p’aying to the treasurer the minimum amount so fik,ed by the county commissioners, such sale of said certificates or duplicate certificates, or such redemption by the owner,, shall release said property from the lien of all delinquent taxes, penalties, interest and costs standing against the same at the date of such sale or redemption.’5 From the' foregoing quotation it is quite apparent that the Legislature intended not only that the owner might redeem from a tax sale upon the payment of the minimum amount so fixed by the board of county commissioners prior to the‘date fixed for a sale in the notice given by the treasurer, but also that the sale of the certificates or duplicate certificates, as well as the redemption by the owner, should release the property from the lien of all delinquent taxes, penalties, interest, and costs standing against the same at the date of such sale or redemption. Not only was the sale of the tax certificate for a minimum amount to be fixed by the board of county commissioners clearly contemplater, but it was evidently intended that the penalties, interest, and costs should no longer constitute a lien against the property, and that this was true in the case of redemption by the owner before a sale of the tax certificate by the treasurer, and was also true, even though the tax certificate was sold before redemption for the minimum amount, in which later event the penalties, interest, and costs should cease to be a lien. Finding no error in the record, the judgment of the district court is affirmed; and it is so ordered. Roberts, C.J., and Parker, J., concur.