dissenting.
The evidence shows that Potter, the owner of the land, was a nonresident and that he was served by publication. Since the conclusion therefore rests'upon that portion of the opinion which holds that a mortgagee is a necessary and indispensable party in an action to foreclose a tax lien under the statute of 1875, I am compelled to dissent. This is a new doctrine in this state and directly overrules what has heretofore been considered to be settled law. Moreover, the former cases are not specifically overruled. Since it is probable that lands have been purchased in reliance upon titles acquired under proceedings based upon the ruling formerly announced, the doctrine has become a rule of property which should not be interfered with. Neither do I agree to the proposition that such an action is purely one in personam. Its only purpose is to subject to sale a specific tract of land upon which the county and state have already acquired a lien, in order to pay the taxes levied and assessed against that particular tract. No personal judgment can be rendered and no deficiency enforced. It is an action quasi in rem and not purely in personam.
*61It is a settled rule in this state that a tax lien is superior to the lien of all other incumbrances, whether created before or after the inception of the lien. Eddy v. Kimmerer, 61 Neb. 498; Merriam v. Goodlett, 36 Neb. 384; Mutual Benefit Life Ins. Co. v. Siefken, 1 Neb. (Unof.) 860. A valid tax sale creates an independent title unconnected with and superior to all other interests.. In administrative sales notice to the owner or occupant of the land is sufficient under the statute to bind all persons claiming interests therein. This is the general rule of other states. Parker v. Baxter, 68 Mass. 185; Black, Tax Titles (2d ed.) secs. 338, 340, 341.
We have held that the word “owner” in the 1875 statute, under which the foreclosure action was brought, means the same as when used in the general revenue law. In Leigh v. Greene, 62 Neb. 344, a like case to this, which held that one Patrick, a mortgagee, was not a necessary party, in the opinion by Albert, C., after reciting a number of provisions of the revenue law in which the word “owner” appears, it is said: “These, and many other provisions of the revenue act, clearly indicate that the legislature used the word ‘owner’ in the popular sense, the sense in which it is understood by the people at large; and having employed it in that sense in the other parts of the act, the inference is warranted that they used it in the same sense in the sections providing for the foreclosure of tax liens. Tracy v. Reed, 38 Fed. 69. At first sight, it may seem anomalous that a person should be concluded by a proceeding to which he was not a party and of which he had no notice. But it must be kept in mind that the procedure providing for the foreclosure of a tax lien is a part of the revenue system of the state, and that the necessities of a government will not always permit an overserupulous regard for private rights. * * * In our opinion, Patrick Avas mot the owner within the meaning of the statute, and the proceedings for the foreclosure of the tax lien were in substantial compliance with the statute, and conclusive against the whole Avorld.” This *62case was appealed to tlie supreme court of the United States (193 U. S. 79), and affirmed upon another ground, but the holding of the opinion quoted, and in the same case on rehearing (64 Neb. 533), as shown in the fourth paragraph of the syllabus, as to the meaning of the word “owner” in this statute,- has never been overruled or receded from by this court, and has several times been reaffirmed. Clifford v. Thun, 74 Neb. 831; Hall v. Moore, 75 Neb. 693.
It is certainly more in consonance with the proper conduct of the public business and the collection of money with which to carry on the affairs of government that the holder of a mortgage on a tract of land should be charged with the duty of protecting his lien by seeing, either that the taxes are paid by the owner of the equity of redemption, or by paying them himself, rather than by compelling the tax collector or the holder of the tax lien to search the records or to look for hidden liens, all of which by statute are subject and inferior to the lien of the taxes. The tax in this state is not levied upon the person owning the land or upon the lien holder. It is not a personal tax, and cannot be collected except from the land. It is the land itself that is charged with the payment. If the owner or occupant alone are entitled to notice in administrative sales, and a mere lien holder is bound to take notice of the statute, Avhy is he not equally bound to take notice of other proceedings to enforce a tax which has been delinquent for years? I believe the former doctrine reaffirmed so recently by the court should be upheld. Even if the present construction might have been adopted at first, a rule of practice long approved should not be lightly set aside, especially when titles to land depend upon it. It is such vacillation that breeds litigation, since no lawyer can safely advise his client, when the court itself does not adhere to settled rules.
Rose, J., concurs in this dissent.*63Tlie following opinion on motion for rehearing was filed December 18, 1912. Rehearing denied; former opinion modified:
Per Curiam.A motion in the alternative for a rehearing, or for a modification of our former opinion by striking out of the statement in the opinion, “and that Hoagland is not barred by the foreclosure proceedings, which were so far void as to fail to convey title to Wilcox,” the latter clause of said statement. Upon a reconsideration of the case, it is held that the motion for rehearing be denied, and the motion to modify sustained. The words, “which were so far void as to fail to convey title to Wilcox,” are therefore stricken out of our said opinion.
Former opinion modieied.