Coffin v. Maitland

Chappell, J. This is a proceeding by intervener, transferee of the former owner and holder of the record title, to redeem from a decree of foreclosure of a tax sale certificate and quiet title to certain lands in Loup County, Nebraska. Intervener’s right was based upon an alleged void service by publication upon the alleged defendant landowners, Olin J. Life, Elizabeth J. Life, his wife, and Martin L. Moore, now single, from whom he had obtained quitclaim deeds. The trial court found generally for plaintiff and against the intervener who appealed to this court. His brief assigns numerous alleged errors, many of which are directed to admissions of evidence. Since the case is an equity proceeding tried without a jury and heard de novo in this court we will not discuss such assignments. It is the rule that: “In a case tried to the court, the presumption obtains that the court, in arriving at a decision, will consider such evidence only as' is competent and relevant, and this court will not reverse a case so tried because other evidence was admitted.” Nelson v. Nelson, 133 Neb. 458, 275 N. W. 829. For the purposes of this opinion we need only give con — 479 — sideration to intervener’s contentions that the decree is not ■sustained by the evidence and is contrary to law. In doing so we find that they cannot be sustained. Decision of the case depends primarily upon whether Martin L. Moore, transferor, was the owner and holder of the record title to the land involved at the time of the foreclosure of the tax sale certificate; whether the notice for service by publication upon him complied with section 25-519, R. S. 1943; and whether at the time of such service he was in fact a nonresident of the state. If such propositions .are answered in the affirmative the judgment must be affirmed, otherwise it must be reversed. Intervener in his brief and argument relies upon the rule: “The right to redeem is a favorite of equity, and will not be •allowed to be taken away, except upon a strict compliance with the steps necessary to divest it, and by due process of law.” Sedlak v. Duda, 144 Neb. 567, 13 N. W. 2d 892, 154 A. L. R. 490. Nevertheless, there are other, rules of law which preclude his right to redeem if the trial court had jurisdiction in the original tax foreclosure proceeding. In Connely v. Hesselberth, 132 Neb. 886, 273 N. W. 821, it was held: “Owners and others interested in realty, sold under decree foreclosing valid tax sale certificate, where foreclosure was commenced more than two years subsequent to issuance of tax sale certificate, are barred from the right of redemption on confirmation of such judicial sale” and “A decree foreclosing a tax sale certificate is not vulnerable to collateral attack for irregularities or defects in the foreclosure proceedings that do not go to the jurisdiction of the court.” Bearing these rules in mind we have examined the record. It discloses that plaintiff filed the original tax foreclosure proceedings in the district court for Loup County on February 10, 1932, more than two years after he purchased the tax sale certificate at a valid, administrative tax sale by the county treasurer. An amended petition was later filed but it in no manner changed the allegations with reference to Martin L. Moore and ——— Moore, his wife. Both the peti — 480 — tion and the amended petition alleged in substance that Martin L. Moore and-Moore, his wife, were the owners and holders of the record title to the land at the time the action was filed. In this connection by its decree in the proceeding at bar, the trial court found that Olin J. Life and Elizabeth J. Life, his wife, were not the owners of the land but strangers to the title at all times here involved and that Martin L. Moore was in fact the owner thereof. We are convinced that no other finding could have been made by the trial court under the record and the evidence appearing in the record which includes the abstract offered by intervener himself. For these reasons we do not deem it necessary to discuss at length the nature of the alleged interests of Olin J. Life and Elizabeth J. Life, his wife, or their alleged right of redemption which intervener claims as their successor by quitclaim deed. Suffice it to say, that if they ever had any right, title or interest in the property this record discloses that they were completely foreclosed by the original tax foreclosure proceedings, even though residents of the state at that time. The case, County of Douglas v. Feenan, ante p. 156, 18 N. W. 2d 740, recently decided by this court, is directly in point and conclusively decides that question. It follows that if they were strangers to the title or if they had any right, title or interest in the property which was validly foreclosed, as above suggested, then their quitclaim deed to the intervener granted him no right, title or interest upon which he could base a right to redeem. In the original foreclosure proceeding Martin L. Moore and ——■— Moore, his wife, were served by publication upon motion of plaintiff supported by an affidavit in conformity with section 25-518, R. S. 1943, based solely upon the ground that they were nonresidents of the State of Nebraska. The trial court so found and ordered constructive service upon them. Notice was thereafter published in a legal newspaper for the required number of consecutive weeks. In conformity with section 25-519, R. S. 1943, the publication of notice — 481 — contained a summary statement of the object and prayer of plaintiff’s petition, including a description of the property; specifically named the court wherein the petition had been filed; and notified the persons by name as the defendants thus intended to be served when they were required to answer plaintiff’s petition or otherwise judgment would be entered against them. Intervener complains that the title of the case at the top of the notice did not contain the names of each defendant. It was worded: “IN THE DISTRICT COURT OF LOUP COUNTY, NEBRASKA H. J. Coffin Plaintiff -vs- H. E. Maitland, et al Defendants. NOTICE.” The title itself, it will be observed, did not contain the separate names of each other defendant but they, including Martin L. Moore and —--Moore, his wife, were otherwise specifically named, directly addressed and notified in the body of the notice as the only defendants intended to be served in every particular as required by statute. In this connection it is stated in 42 Am. Jur., sec. 95, p. 83: “The form of the notice to be published, and what it shall contain, rest in the legislative discretion, subject to the restriction that it shall be of such a character that it will have a tendency, in a reasonable degree, to convey information to interested parties that the action affects their rights.” However, as stated in 50 C. J., sec. 196, p. 535: “Where the statute prescribes certain things which the published notice shall contain, they all must be considered essential, and the absence of any of them in the published notice is fatal to the jurisdiction; but the notice need contain nothing which is not required by statute.” The following statement appears in Bowers, Process and Service, sec. 276, p. 406: “The courts are strongly inclined to ignore mere technical and unsubstantial defects in published process, and to hold the notice sufficient if it be of such a character that it will, to a reasonable degree, inform the parties defendant that the action affects their rights, and give them an opportunity to assert and defend those rights.” As early as McCormick v. Paddock, 20 Neb. 486, — 482 — 30 N. W. 602, this court held: “When service of the pendency of the action is made by publication, if the published notice is so specific as to advise the defendants of their interest sought to be affected by the proceeding it is sufficient.” In Armstrong v. Griffith, 94 Neb. 515, 143 N. W. 461, it was said: “For a notice to be a good notice by which jurisdiction is acquired, it should address the defendant or defendants intended to be served. It may be that no particular form is necessary, but the defendant intended to be served should be directly addressed or the name should be included in the title of the case contained in the notice.” We have examined the notice published in that case which is in the abstract of record on file in this court. It was addressed: “Notice to Non-Resident Defendant”, not “Defendants” as stated in the opinion. There was but one defendant. We are of the opinion that the court overlooked the fact that the defendant named in the body of the notice was the only defendant in the case and therefore was clearly the defendant intended to be served. The first sentence above quoted is correct in every respect but we are of the opinion that the latter sentence is too restrictive and insofar as it conflicts with the correct rule hereinafter stated in this opinion, ,-it is overruled. In that connection the correct rule applicable here is that if the names of the defendants intended to be served clearly appear either in the caption or in the body of the notice informing them when they are required to answer it is sufficient. It follows as a matter of course that the notice must also contain a summary statement of the object and prayer of the petition and mention the court wherein it is filed. We conclude that while it would have been proper and commendable practice to have included the defendants’ names in the title of the case at the top of the notice the statute does not specifically require it and we cannot say under the circumstances presented here that the notice was void and subject to collateral attack. The abstract discloses that plaintiff filed Us pendens'-'notice of the original foreclosure proceedings on October 13, — 483 — 1932. The proceedings were pursued to decree, order of sale and sheriff’s sale at which the plaintiff purchased the property. Thereafter, on May 9, 1935, the trial court confirmed the sale finding that the premises sold for their reasonable value, ordered a sheriff’s deed delivered to plaintiff, granted him possession and awarded him a writ of restitution. The intervener was county clerk and ex officio clerk of the district court for Loup County at all times during the pendency of the foreclosure proceedings and had full notice and knowledge thereof. On March 10, 1942, he filed a request to redeem and later on September 28, 1942, he filed another such request which included a prayer that the title to the premises involved be quieted in him. In the latter application he sets forth the chain of title in conformity with the abstract and alleges that Martin L. Moore on November 10, 1928, obtained a warranty deed to the property from one P. C. Erickson and his wife, and was the owner of the record title at all times thereafter until September '27, 1941, when Martin L. Moore, single, conveyed it to intervener who was from that time the owner and holder thereof. He also alleges that the service of publication upon Martin L. Moore and-— Moore, his wife, and all subsequent proceedings were void for want of jurisdiction because at all times involved Martin L. Moore, single, was a resident of the state of Nebraska. He specifically prays therein that Martin L. Moore be found by the trial court to have been the owner of the land at the time decree of foreclosure was entered and to find that intervener was now the owner thereof and entitled as such to redeem. At this point it should' be stated the evidence discloses that intervener at the time of obtaining quitclaim deed from Martin L. Moore represented that he was an abstracter and needed a quitclaim deed to straighten out the title. Such a deed which recites a consideration of $5.00 was then executed by Martin L. Moore, single, for a consideration of $10.00. Intervener a,Iso received a quitclaim deed on August 30, 1941, from Olin J. Life and Elizabeth J. Life, his — 484 — wife, who were strangers to the title and gave them one dollar each not as consideration for the deed although so recited therein but “just a matter of good fellowship.” An attempt was made by intervener during the trial to show that Martin L. Moore was not in fact the owner of the property at the time the foreclosure was commenced but had theretofore transferred all of his interests to Olin J. Life. However, there is no competent evidence to sustain any such contention and it is contrary to evidence adduced by intervener and contrary to his own pleadings including a separate answer filed by Martin L. Moore himself. On the other hand, if it were true, as heretofore stated, the interests of Olin J. Life and Elizabeth J. Life, his wife, if they ever had any, were theretofore properly foreclosed in the original tax foreclosure proceeding. It is now a rule in this jurisdiction that a judgment or decree affecting the title to land owned by a resident of this state the only notice given being by publication in conformity with section 25-519, R. S. 1943, but based solely upon the provisions of section 25-517, R. S. 1943, as to nonresidence as distinguished from subsection 6 thereof, is void and subject to collateral attack where no appearance was made by or for such resident. See County of Douglas v. Feenan, supra. It follows, of course, that if the owner were in fad; a nonresident at the time such notice was given, then the judgment or decree would be valid and not subject to collateral attack as attempted in this proceeding. Therefore the question of whether Martin L. Moore was a nonresident of Nebraska at the time the service by publication was had upon him in the original tax foreclosure proceedings became an important jurisdictional issue in this proceeding. The pleadings filed therein make the alleged residence or nonresidence of Martin L. Moore at that time an issue. A large part of the evidence adduced by the parties was devoted to that question which to recite would prolong this opinion beyond necessity. , The trial court found therefrom in its decree entered in these proceedings that Martin L. Moore was a nonresident — 485 — of the state of Nebraska at the time constructive service was had upon him in the original tax foreclosure proceedings which gave jurisdiction to the court. It was also found that the interests of Martin L. Moore in the premises had been lawfully foreclosed; that he had no right of redemption and that Olin J. Life was not the owner of the premises involved but a stranger to the title, therefore intervener had no right, title or interest which would permit him to redeem the premises. In its decree the trial court also found that the original decree of foreclosure, sale to plaintiff and confirmation thereof were valid and that the title to the premises should be quieted in him. We conclude that there is ample competent evidence in the record sustaining the trial court’s findings and decree. For the reasons heretofore stated the judgment is affirmed. Affirmed.