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

The following opinion on rehearing was filed December 7, 1904. Former judgment vacated. Judgment of the district court reversed:

4.-: -. The sale of lands for taxes contemplated by the constitutional provisions above mentioned refers to and embraces both administrative and judicial sales. 5.-: Sale: Confirmation. The equity of redemption, only, being barred by the decree in the case at bar, the right to redeem from tax sale may appropriately be raised by an objection to a motion to confirm a sale made in pursuance of the decree. a.-: -: -. An absolute order of confirmation of a sale, made in pursuance of a decree for the sale of land for the satisfaction of taxes over objections which deprives the decree debtor of the right of redemption from tax sale given by the statute or the constitution, is erroneous. Holcomb, C. J.

In tbe former opinion handed down in this case, ante, p. 399, it is-held and decided, in substance, that appellant’s right of redemption from tax sale was involved and had been adjudicated in the decree rendered by the court below, and that, upon objections to confirmation of a sale made in pursuance of the decree, he could not be heard to object to a confirmation on the ground that he had not been allowed the time provided by law to redeem the land ordered to be sold, in the exercise of his right of redemption from the sale, and that such objection was an indirect and collateral attack on the decree and therefore could not be sustained. A rehearing has been allowed, the questions again argued, and we have been favored also with some helpful briefs by counsel appearing amici curae. While the propositions announced in the former opinion are yet believed to be correct in the abstract, further consideration has led us to the conclusion that a misapplication of the propositions considered has been made in the case at bar *408and a misconception had of the legal scope and effect of the decree entered in the trial court, which was thelbasis for the sale to which the objections were made and which resulted in the ruling appealed from. In the opinion, it is' said:

“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 of the sale made in pursuance thereof and in strict conformity with its terms.”

The important question to be determined therefore is whether, as a matter of law, the decree does, in fact and in legal contemplation, operate to cut off and bar the appellant from his right to redeem his real estate from tax sale, as is provided by law he may do. The decree found a certain sum due the plaintiff county for taxes legally assessed and levied against the land and that such taxes Avere a lien thereon, were due and unpaid, and that, in case the defendant failed for twenty days from the entry of the decree to pay the sum found due, with interest and costs, the defendant’s 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. In pursuance of the decree, the premises were sold by the sheriff and a report made thereof, and, upon an application to confirm the sale, among other things, an objection was interposed on the ground that such confirmation should not be had, “because this is an action on the; part of the plaintiff to foreclose a pretended lien for the taxes of plaintiff for the years 1893 to 1899, inclusive, and said decree Avas rendered February 28, 1901, and said sale for said lien was made October 2,1901, and the two years’ time for redemption of said sale, as provided in section 3 of article IX of the constitution, has not expired, and the *409plaintiff is not entitled to confirmation of sale, nor the purchaser entitled to a deed thereunder before said timé for redemption has expired.”

1. Does the decree which bars only the equity of redemption of the tax debtor cut off his right to redeem from a tax sale, which is a different right and one arising wholly from the constitution and statutory provisions enacted in conformity themvith?

The equity of redemption, as usually recognized and applied, has its origin in the early chancery practice, where a strict foreclosure was decreed in cases where an equity, only, in real estate remained in the debtor or mortgagor and which, by a formal decree, was cut off and barred if the property was not redeemed at a time as therein stated. Under our practice, we now speak of it as belonging to the owners of the legal title to real estate mortgaged or otherwise encumbered, where, in the enforcement of the lien, the jurisdiction of a court of equity is invoked for the purpose of decreeing a sale of the property for the, satisfaction of the debt. Strictly speaking, it is a right to redeem from the lien and may be taken advantage of at any time before the decree or, thereafter, before a sale and confirmation in pursuance of the decree, by means of which the equity of redemption becomes extinguished. This right to redeem is involved in all foreclosure cases, whether the mortgage creates a legal estate, subject to be defeated by conditions, or whether the. incumbrance is merely a lien on the land; the court, in either case, determining, when rendering the decree, whether the conditions are violated and the estate, legal or equitable, subject to forfeiture or sale in satisfaction of the debt. In one instance, it is barred by the decree, and, in the other, by the decree and a sale of the land made in pursuance thereof.

“The statutory right to redeem differs essentially from the equity of redemption proper. It is not an estate in the mortgaged property, but is a mere personal privilege of redeeming the property within a certain time after the *410mortgage has been foreclosed.” 11 Am. & Eng. Ency. Law (2d ed.), 213.

In Mayer v. Farmers Bank, 44 Ia. 212, it is said:

“The equity of redemption must not be confounded with a right of redemption. A mortgagor has an equity of redemption until the sale, and not afterward, and this is true whether the sale is made upon foreclosure or under revised section 3664. After sale, he has a right of redemption if the statute gives it, and so has the lien holder.”

2. The right to redemption from a sale in the enforcement of a lien on real estate, whether for taxes or otherwise, which lias for its authority a statute or constitutional provision, is a right distinguishable from the equity of redemption, in that the latter is barred and foreclosed by invoking the jurisdiction of the courts for that purpose and by an adjudication and determination of the extent of shell right, while the right to redeem from sale which is given by the law is usually self-executing and, to enjoy the benefit of which, no proceedings, ordinarily, are required to be had in the courts to malte such right effective. A statutory right to redeem fixes the terms upon which such redemption may be had, and the right thus given may be availed of without the formality of a decree, consequent upon an adjudication in court proceedings, and without other or different steps for the establishment of such right than those provided for by the statute itself. It is a right of redemption as distinguished from an equity of redemption, and a bill in equity is not generally needed to 'enforce such right. It is statutory, to be enforced as the statutes provide and not otherwise. 2 Jones, Mortgages, sec. 1051; McHugh v. Wells, 39 Mich. 175. An ordinary decree of foreclosure of a mortgage lien, barring the equity of redemption, would, usually, be very similar in its terms to the language used in the case at bar; that is, the equity of redemption would be foreclosed and barred, if the amount found to be due and adjudged to be a lien on the property in litigation was not paid in a short time, and the property ordered sold; and, upon confirmation, the equity of re*411demption Avould be forever cut off. Yet, such a decree Avould be subject to the provisions of our statute authorizing a stay of the order of sale for nine months, and, in the face of a request for such a stay, a premature sale and confirmation thereof, of the property involved, in pursuance of the terms of the decree, Avonld manifestly be erroneous. So, in the case at bar, the formal decree entered therein, barring and foreclosing the appellant’s equity of redemption, must be held to leave unaffected and unimpaired the appellant’s right to redeem, given him by positive laAv.

3. The laAv at the time these proceedings Avere had, provided that the OAvner or occupant of any land sold for taxes, or any person having a lien or interest thereon, might redeem the same at any time Avithin two years after the day of such sale, upon terms as therein provided. The constitution expressly declares:

“The right of redemption from all sales of real estate, for the nonpayment of taxes or special assessments of any character A\diatever, shall exist in favor of owners' and persons interested in such real estate, for a period of not less than two years from such sales thereof.” Sec. 3, art. IX of the constitution.

In Lincoln Street R. Co. v. City of Lincoln, 61 Neb. 109, it is held (p. 112) :

“Under the constitutional provisions, the right of redemption is made secure to all those whose property as therein mentioned may be sold for nonpayment of taxes or special assessments, and the right is secured in the absence of statutory provisions more definitely pointing out the mode by which the redemption may be made. The constitutional provisions are held to be self-executing,”

In the opinion, it is said (p. 142) :

“No difficulty would be experienced in redeeming from sale of real estate in foreclosure proceedings of a lien for taxes, after sale and before confirmation, by paying the judgment, interest, costs and accruing costs; and we see no reason why a further extension of time after sale in which *412redemption might be had would in any way prevent consummation of the object contemplated by the section, and at any time within the period therein mentioned; nor do the constitutional provisions appear inadequate to fully conserve the rights of parties in regard thereto. The proceedings are in a court of equity, and it has control over all the steps therein taken until the rights of all parties have been fully adjudicated and finally determined under the provisions of both the constitution and the statute.”

4. In County of Logan v. Carnahan, 66 Neb. 685, the constitutional provision relative to redemption from tax sales was further considered, and it is there held that the section referred to authorizes, within the time mentioned, redemption from judicial as well as administrative sales. It is said in the opinion:

“The sales here referred to include, in our judgment, both administrative and judicial sales. The right secured to the landowner is the right to redeem from any sale which, if valid, would divest his title.”

It is obvious, from what has been said, that, in this state, there is a right under the law to redeem from a. sale of lands for delinquent taxes in favor of the owner for a period of two years from the time of such sale, and it is equally clear that whether Ave view the sale, in the case at bar, as having been made in an administrative capacity, by the proper authority, before the institution of the proceedings to foreclose in which the decree, in the case at bar, Avas rendered, or as having been made at the judicial sale made in pursuance of such decree, the landOAvner has been, by the order of confirmation, deprived of the benefit of the time allowed him by law in which to redeem, and that, unless his right to such legal redemption is foreclosed and cut off by the decree, which we are constrained to say has not been, the order of confirmation complained of ought not to have been entered, which, in effect, makes the sale absolute upon the execution and delivery of the sheriff’s deed, and transfers to the purchaser the full and absolute title to the premises decreed to be sold.

*4135. Aside from the general averments in the petition and such as are usually found in pleadings of this character, where the object is to enforce a lien upon real property and cut off the equity of redemption, there is nothing in the record to indicate that the question of the legal right to redeem from a tax sale was either raised or expressly determined, except the inference proper to be drawn from the decree in the general terms in which it is framed, as heretofore noted. If this question is neither fairly raised nor necessarily determined by the decree entered directing a sale of the property for the satisfaction of the lien found to exist in the plaintiff's favor, and barring the equity of redemption, then there can be, we think, no valid objection to the question being raised, as it was raised, upon the application for a confirmation of the order of sale and the objections interposed by the appellant against the order of confirmation being, at that time, made absolute. The propriety of raising the question in this manner is recognized in Brine v. Hartford Fire Ins. Co., 96 U. S. 627, cited in the former opinion, Avhere the court in the determination of the questions therein presented said:

“If the point had been raised or insisted on by the appellee, it would admit of doubt whether the question is fairly raised by the decree; for Avhile it orders the sale of the lot, and a report to the court, it says nothing about barring the equity of redemption, nor of the making of a deed; and, but for a single phrase in the decree, it would seem that the appropriate time to raise this question would be on the confirmation of the report of sale and the order for a deed to the purchaser, which has not yet been done.”

It is doubtless true that, if the issue were directly raised in the foreclosure action and an adjudication had respecting the constitutional and statutory right to redemption, and such question was necessarily and in fact determined by the decree entered, in that event, the question has become judicata, and could not be raised collaterally,' by an objection to the confirmation of sale, because such right bad been denied in the decree. But, if the decree purports *414only to foreclose such right in general terms, when the question Avas- not raised nor necessary to a proper determination of' the controversy, then, Ave are not without authority for treating such part of the decree as being mere surplusage and as ineffective for the purpose of cutting out such right of redemption.

“The right of redemption,” say the supreme court of Illinois, “given by the statute to a decree or judgment debtor is not affected by a failure of the court to provide in its decree for the sale of real estate, Avith the privilege of redemption. It is the statute that gives the right of redemption, and not the decree of the court. In a case where the statute authorizes a redemption from a sale, a clause in the decree ordering the sale that declares the sale shall be absolute, Avill not bar that right. That portion of the decree will be regarded as inoperative, and a redemption will be allowed as in other cases.” Fitch v. Wetherbee, 110 Ill. 475, 492.

And to the same effect is Hyman v. Bogue, 135 Ill. 9. In support of the doctrine, the court in the latter case cites Brine v. Hartford Fire Ins. Co., supra; Orvis v. Powell, 98 U. S. 176; Swift v. Smith, 102 U. S. 442; Burley v. Flint, 105 U. S. 247; Mason v. Northwestern Ins. Co., 106 U. S. 163. The conclusion AAe have reached insures to the tax debtor the right of redemption from tax sale contemplated by the constitution and the statutes, and which, of course, he is entitled to as a matter of right and justice, unless it is obvious that such right has been Avaived or lost by a failure to assert it seasonably, and in a proper manner; and, in this case, that question not having necessarily been determined by the decree directing a sale of the real estáte for the satisfaction of the taxes due, there can, we think, be no valid reason for denying to the OAvner of the real estate the right to be heard on an objection to a confirmation of the sale made in pursuance of the decree which, if consummated, would devest him of all title, and deprive him of the right of redemption guaranteed him by the laAVS of the state. The order confirming the sale, and directing *415the execution of a deed to the purchaser, should have been such as to preserve to the tax debtor his legal right of redemption from the tax sale within the time allowed him by law, and, because of its failure to so provide, the judgment of affirmance heretofore entered is vacated; the order of confirmation is reversed and the cause remanded, with directions to the trial court to enter an order confirming the sale, subject to the appellant’s right of redemption within the time allowed by law, and to direct the execution and issuance of a deed by the sheriff conveying to the purchaser the premises sold, in the event such redemption is not had within the time provided.

Reversed.