County of Logan v. McKinley-Lanning Loan & Trust Co.

Holcomb, J. This is an appeal from an order of confirmation of sale of real estate made in foreclosure proceedings. The objections interposed to the order of confirmation required to be noticed, are: First, that the decree of the court on which the sale is based is void, in that the court had no jurisdiction to enter such decree, because the action on the part of the plaintiff is unauthorized by law; second, because the action was to foreclose a pretended lien for taxes for the years 1893 to 1899, inclusive; the decree was rendered February 28, 1901; the sale was made October 2, 1901, and the two years’ time for redemption from such sale, as provided in section 3, article IX, of the constitution, has not expired. As indicated by the motion, the action was instituted by the plaintiff county to enforce a tax lien for delinquent taxes on real estate, arising by virtue of the assessment and levy of taxes, for the several years mentioned, on the property sold for general revenue purposes. The petition praying for a foreclosure of the tax lien, and on which the decree is based, was manifestly defective, in that it was not alleged that the land had been sold for delinquent taxes by the county treasurer and a tax sale certificate issued to the county, as is held must be done in the recent case of County of Logan v. Carnahan, 66 Neb. 685; s. c. on rehearing 66 Neb. 693. But, while the judgment or decree was erroneous in the sense that a reversal of it might have been obtained by prosecuting an appeal or a petition in error, yet, it was not, for that reason, void and subject to collateral attack. The counties of the state are empowered by the legislature to enforce the collection of delinquent taxes assessed on real estate, when the land has not been sold by the county treasurers to those willing to purchase by paying the taxes assessed against the property, and, for that purpose, to institute and maintain an equitable action in the'nature of the foreclosure of a mortgage lien; the county acting, in such cases, as the trustee [401] of an express trust charged with the duty of enforcing the collection of such delinquent taxes by a foreclosure of the lien and a judicial sale of the property on which the taxes are assessed, and, Avhen collected, to cause the taxes to be distributed to those for Avhose benefit they Avere levied. The district courts are the tribunals having general jurisdiction over actions of this character; In determining whether, in a given case, the county is authorized to maintain a suit to foredose a tax lien, the court acts upon a matter confessedly villi in its jurisdiction, and its judgments and decrees become final unless appealed from or reversed, even though the rendition of the decree is erroneous because no tax sale certificate has been issued by the county treasurer to the county bringing the suit, as is required to be done in the regular exercise of the power thus conferred on such counties. County of Logan v. Carnahan, supra. Whether or not the county could, under the statute, maintain an action in a particular case, without, in form, an antecedent administrative sale by the county treasurer and the issuance to it of a tax sale certificate, Avas a question which Avent to the existence of a cause of action and not to the jurisdiction of the court. Arnold v. Booth, 14 Wis. 195. The objection to the confirmation on the ground that the decree is void is untenable. In the petition filed in the action it was prayed that an accounting be had, and a finding of the amount due plaintiff county, which should be decreed to be a first lien on the property, and that the defendants, and each and all of them, be foreclosed, barred; and enjoined from any and all right, title and interest or lien in, to and upon such premises; that the premises be sold under a decree of the court and that, upon a confirmation of the sale, the sheriff be ordered to make to the purchaser of said premises a good and sufficient deed of conveyance, and put him in possession of the premises purchased. In the decree rendered it Avas adjudged by the court that, in case the defendants failed for twenty da vs from the entry of the decree [402] to pay the plaintiff the sum found due, with interest, the defendants’ equity of redemption be foreclosed and said premises should be sold, and an order of sale was directed to be issued to the sheriff; commanding him to sell the real estate as upon execution and bring the proceeds into court to be applied in satisfaction of the decree. No attempt has been made to modify the decree or obtain its reversal, and the same has now become final. By its terms, the equity of redemption of the appealing defendants was barred and foreclosed upon the sale of the premises. Without determining- the- question of whether the decree might properly have been framed so as to permit a redemption at any time within two years from the judicial sale, as is contended by the appellants should be done, or might have been modified, in a suitable application, so as to accomplish the same purpose, it is sufficient to say that the decree, as it stands, does not contain any such provision and that, by its terms, the time for redemption had expired when the sale was confirmed and a deed executed by the sheriff to the purchaser thereat. The sale was made in pursuance of the decree and according to its terms, and if the decree is effective for any purpose, as it certainly is when unappealed from and unreversed, the appellants’ equity of redemption was barred thereby and they, having slept on their rights, can not now be heard to complain. Their objections to the order of confirmation are in their nature a collateral attack on the decree, which, of course, it is not subject to, unless absolutely void. Having suffered an erroneous decree to become final, the appellants are not in a position, now, to obtain a reversal or modification, by a direct proceeding brought for that purpose, and, by the application of well recognized principles, it is invulnerable to an attack, indirectly. The court having jurisdiction over the parties and the subject matter of the action, whatever was involved, adjudicated and determined regarding the merits of the decree which it entered was set at rest when the decree became final, and can not be inquired into upon objections to confirmation [403] of the sale made in pursuance thereof and in strict conformity with its terms. This rule has the, sanction of several different holdings of this court on the, subject. In State Nat. Bank of Lincoln v. Scofield, 9 Neb. 499, it is stated in the syllabus: “On an appeal from an order of the district court confirming a sale of mortgaged premises, held, that this court would not consider a question involving the merits of the, original case.” Post, J., speaking for the court in Stratton v. Reisdorph, 35 Neb. 314, said: .“The district court had jurisdiction of the subject of the action and of the parties, hence, questions which affect the regularity of the decree are concluded thereby. The decree can not be assailed for any mere irregularity, upon a motion to set aside a sale. Parrat v. Neligh, 7 Neb. 456.” To the same effect are Nebraska Loan & Trust Co. v. Hamer, 40 Neb. 281; Beatrice Paper Co. v. Beloit Iron Works, 46 Neb. 900. In Hoover v. Hale, 56 Neb. 67, it is held: “A judgment is an adjudication of the rights of the litigant to the subject matter of the suit, and in a proceeding to confirm a sale made to satisfy such judgment, the district court has no authority to inquire into its merits.” Prom the foregoing, it would seem quite clear that the second objection to the order of confirmation comes too late and can not now avail the appellants anything, even though they have been deprived of the two years’ time for redemption from tax sale contemplated by the provision of the constitution referred to in the motion. This question should have been raised before the rendition of the decree and a determination had of the time which under the law they were entitled to in which to redeem from such sale or, in any event, by an application for a modification of the decree, preserving to them such rights as they were justly entitled to, before their title and estate in the land sold should be finally and absolutely extinguished. This position is fortified by reference to authorities in other jurisdictions. In Brine v. Insurance Co., 96 U. S. 627, the [404] subject of the statutory right of redemption after sale was exhaustively considered, as affecting the procedure in the federal chancery courts in the foreclosure of real estate mortgages. ' The decree directing a sale of property to satisfy a mortgage foreclosing the equity of redemption was reversed, because not recognizing the right of redemption on the part of the mortgagor or the owner, of the equity for the time allowed by the statute of the state, in which the land was situated, aftér a sale to be made in pursuance of the decree. It was decided that the erroneous decree should have contained provisions preserving to the owners of the equity the right to redeem, at any time Avithin one year after the sale, which was given by the statute of the state, in which the land Avas situated. In Maloney v. Dewey, 127 Ill. 395, it is stated in the syllabus : “Errors in a decree of foreclosure, such as directing a sale without redemption, do not divest the court of its jurisdiction so as to render the decree liable to collateral attack.” In the opinion it is said: “The objection is urged, that the decree rendered is erroneous, because it directs a sale Avithout redemption. But that error does not divest the United States circuit court of jurisdiction of the case. The remedy is, to apply to that court. What effect that error might have Avere this a suit at law, and the claim Avere made that the deed from the master was void because of such error, Ave Avill not undertake to decide. But this is a proceeding in equity to redeem from a deed of trust that a federal court has foreclosed. Whether the decree is erroneous in respect of the order of sale, or not, can not affect the jurisdiction of that court to render final decree. If this decree should be reversed on review or error, that court would still have the exclusive jurisdiction to render final decree in the case, and necessarily, therefore, some other court could not have jurisdiction to render a decree that redemption under the deed of trust be alloAved. The right of redemp [405] tion is involved in the question of foreclosure. No decree can he rendered in such a case without passing upon it, and the court first obtaining jurisdiction to pass upon it must retain that jurisdiction to the end. Ex parte Jenkins, 2 Wall. Jr. (U. S. C. C.) 521; Wallace v. McConnell, 13 Pet. 136, 151.” Moore v. Jeffers, 53 Ia. 202, is a case more nearly in point. It appears that, in a prior action, a sale of real estate had been made in foreclosure proceedings, in pursuance of a decree rendered therein which, by its terms, disregarded and cut off the time for redemption allowed by statute after sale. It is held, in the case cited, that the court in the prior action, having jurisdiction of the parties and the subject matter of the action, although its decree was undoubtedly erroneous, it was not void and could not be impeached in a collateral proceeding. In the opinion it is said: “Under the doctrine of that case it is clear that the decree of foreclosure in this case was erroneous. It was, however, erroneous, simply, and not void. It can not be collaterally impeached, but must be regarded as valid and binding until reviewed by the appellate court. Where a court has jurisdiction the record must be received as conclusive of the rights adjudicated, and no fact established by the judgment of the court can be controverted. Shriver’s Lessee v. Lynn, 2 How. 43. When it is once made to appear that a court has jurisdiction, both of the subject matter and the parties, the judgment which it pronounces must be held conclusive and binding upon the parties thereto, and their privies, notwithstanding the court may have proceeded irregularly or erred in its application of the law to the case before it. Cooley, Constitutional Limitations, 408.” In Mills v. Ralston, 10 Kan. 206, it is said that the terms of a decree show not merely the property but also the amount of the defendant’s interest therein which is ordered to be sold, that the sale follows the decree and the sheriff offers whatever the decree orders, and when the sale is [406] confirmed, it passes to the purchaser the interest the defendant possessed which the decree ordered sold. In a later case, Ogden v. Walters, 12 Kan. 282, it is held that a decree in a foreclosure suit, barring all right to redemption, is binding upon all parties and privies even if erroneous, and can not be attacked collaterally. From what has been said and the authorities cited, it seems clear that on principle and authority the decree in the case at bar has become final and conclusive on the parties to the action, and the sale having been made in pursuance of, and in conformity with, the terms of the decree, the order of confirmation was rightly entered, and whatever irregularity or erroneous action of the trial court which may exist, of which complaint is made, goes to the merits of the decree on which the sale was based, which can be corrected only by a direct proceeding for a reversal or modification thereof, and can not be raised by objections interposed to the confirmation of sale Avhich appears to have been made in accordance with the decree and in conformity with the statute. 1. Foreclosure of Tax Lieu: Decree: Right of Redemption. In a suit to foreclose a tax lien on real estate and to sell the land for the satisfaction of the taxes found to be due, a decree barring the equity of redemption, only, does not, necessarily, adjudicate the right of redemption from tax sale given by the statute or the constitution. a. Right of Redemption. The statutory right of redemption from tax sale differs essentially from the equity of redemption proper. 2. -. A statutory right of redemption from sale as distinguished from the equity of redemption is usually self-executing, and to enjoy the benefit thereof, no proceedings, ordinarily, are required to be had in the courts to make such right effective. 3. ——: Constitution. Section 3, article IX, of the constitution declares that “the right of redemption from all sales of real estate, for the nonpayment of taxes or special assessments of any character whatever, shall exist in favor of owners and persons interested in such real estate, for a period of not less that two years,” and, in the absence of statutory provisions more definitely pointing out the mode by which redemption may be made, these provisions are self-executing and secure to all whose property, as therein mentioned, may be sold for nonpayment of taxes or special assessments the right of redemption from tax sale as therein provided. [406] The order appealed from is therefore Affirmed.