Mummert v. Grant

Raper, District Judge. In an action to foreclose a tax lien, David Z. Mummert, plaintiff, on November 25, 1925, recovered a decree of foreclosure for the sum of $757.20, with interest at 15 per cent, per annum from that date, and attorney’s fee, taxed as costs, of $75.72, which was decreed to be a first lien on the west half of the northeast quarter of section 9, township 24 north, range 10 east, in Thurston county, Nebraska. The United States, because of a claim that the land was not taxable (alleging it to be Indian land) defended. By agreement of all parties, the sale under the decree was delayed until the question of the right of the state to tax the land was passed upon by the United States court of appeals. After that court decided the contention of the United States, holding that the land was taxable, an order of sale was issued on the decree and the land sold thereunder to W. T. Truesdale for the sum of $1,079.63, and on June 9, 1927, said sale was confirmed and the sheriff was directed to execute and deliver deed to purchaser. From said order of confirmation, the United States, on behalf of Fred A. Baxter, appealed to this court, and gave supersedeas bond to David Z. Mummert, plaintiff, and W. T. Truesdale, purchaser, which bond was duly approved. The defendant Fred A. Baxter, owner of the land, has applied to this court for leave to redeem. The right to redeem is not questioned by appellees. The motion of the defendant Baxter to redeem is sustained. The only contest is the amount to be paid for such redemption. Concerning the status of the parties under such appeal, it was said by Judge Harrison in Philadelphia Mortgage & Trust Co. v. Gustus, 55 Neb. 435: “The appeal and bond, if they did not vacate the order of the district court, superseded, suspended, or rendered it inoperative. The purchaser acquired no rights and the applicant was not divested of his title to, and rights in, the land. (Citing cases.) All things remained as before the sale and subsequent order of the district court, and will so remain and exist until a decision in and by this court of the matter appealed.” [653] The statutes controlling the foreclosure of tax liens gives no specific directions as to amount necessary to redeem in cases in this present situation. Section 6088, Comp. St. 1922, concerning tax lien foreclosures, provides that the taxj sale purchaser may proceed to foreclose his lien “in all respects as far as practicable in the same manner and with like effect as is provided for the foreclosure of real estate mortgages.” Section 6095, Comp. St. 1922, gives right of such redemption after the sale and before confirmation by paying “the sum for which the land was sold, with interest and costs to date of confirmation.” This language is not clear. If it is redeemed before confirmation, there can be no confirmation. Perhaps the law was intended to mean the date of redemption, and not date of confirmation. That is its effect. This provision, without doubt, presupposes that on the sale and confirmation the holder of the tax lien will be paid the proceeds of the sale, or enough to satisfy his decree, interest, and the costs, and such payment would have been made if the supersedeas bond had not been given. This bond prevented the plaintiff from receiving his money, and took from the purchaser the right to the title and possession of the land, and the owner retained the use and pos1* session of his land during the appeal. It is wholly unfair and inequitable to permit the owner to enjoy the possession of the land and withhold the rights of the plaintiff and purchaser, and to now redeem by paying only the amount of plaintiff’s decree, with interest to date of confirmation, and costs, which the owner now contends is all that he should be required to pay. A reasonable construction of section 6088, Comp. St. 1922, giving a like effect to tax sale foreclosures as the law provides for mortgage foreclosures, where no other specific statute intervenes, makes it apply to redemption after confirmation and appeal to this court, with the same effect as redemption in this court from mortgage foreclosures. That requires the payment of the decree with interest, as found by the trial court, to the date of redemption, and [654] costs, and 12 per cent, on the money actually paid by the purchaser on his bid, and which has been held by the sheriff, pending the appeal, from the time of such payment to date of redemption. This is in accord with the holding in the case of Lincoln Savings & Loan Ass’n v. Anderson, 115 Neb. 199, and Trompen v. Hammond, 61 Neb. 446. The cause is remanded to the district court, with directions to determine the amount paid by the purchaser to the sheriff on his bid, and which has been held by said sheriff, and, if Fred A. Baxter, within 30 days after the court has determined said amount so paid by the bidder to, and held by, said sheriff, shall pay to the clerk of the district court the amount of plaintiff’s decree, with interest at 15 per cent, from date of decree to date of redemption, and all costs in the district and supreme court, including attorney’s fee, and also pay to the clerk of the district court, for. the use of the bidder, 12 per cent, interest on the amount so paid by the bidder, from the time of such payment to the date of redemption, the redemption will be permitted. In case of such redemption, the sheriff shall return to the bidder the amount so held by the sheriff. If such payments are so made within the time hereinabove directed, the redemption will be effective, but, unless the payments are so made, the decree of the district court, confirming the sale and ordering deed made to the purchaser for the land described in the seventh cause of action in plaintiff’s petition, will stand affirmed. Judgment accordingly.