#### Henry A. Clifford v. Hans Thun et al.

Filed November 11, 1905.

No. 13,965.

1. Amended Petition: Limitations: Demtjeeeb. An amended petition setting up a 'new cause of action, 'which is barred when the amended petition is filed, is vulnerable to a demurrer. *Buerstetta v. Bank, 57*Neb. 504.

2. Foreclosure Sale: Suit to Redeem: Limitations. One seeking to redeem from a foreclosure sale based on a tax lien must bring his action therefor within two years from the date of the tax sale.

*8323. A notice by publication was directed to “The Globe Investment Company,” the true name of the corporation being “Globe Investment Company.” *Held,*That the variance was so slight as to be immaterial.

4. Hotice. The same notice was directed to “H. A. Wyman, Receiver of the Globe Investment Company,” Wyman’s true name being “Henry A. Wyman.” *Held,*That, as the petition showed that Wyman was appointed receiver by the court of a sister state, he was not a necessary party to the action and a defect in the notice to him was immaterial.

Error to the district court for Brown county: James J. Harrington, Judge.

*Affirmed.*

*Charles Battclle,*for plaintiff in error.

*A. W. Bcattergood, contra.*

Duffie, C.

February 21, 1903, Henry A. Clifford, the plaintiff in error, filed his petition in the district court for Brown county for the foreclosure of a mortgage on 80 acres of land made to the Globe Investment Company by Henry Thun and Dora, his wife. September 5, 1903, he filed an amended petition, in which he alleges that on August 6, 1901, the land covered by his mortgage was sold for the delinquent taxes due thereon for the years 1895-1900, botli inclusive; that one Skillman was the purchaser at said sale, and that on August 22, 1901, said Skillman commenced an action to foreclose his tax certificate, making numerous parties defendant to said action, and, among others, *The*Globe Investment Company and H. A. Wyman as receiver of said company; that one Toy, Avho held a tax certificate about nine years old, filed an answer and cross-bill asking a foreclosure thereof; that a decree Avas entered foreclosing the tax liens held by Skillman and Toy, and that on December 24, 1901, all the real estate Avas sold to satisfy said decree, Hans Thun becoming the purchaser. The petition further recites that the plaintiff is the owner and holder of a mortgage, made by Henry Thun *833and wife to the Globe Investment Company, covering the premises in controversy; that the same is due and unpaid, a.nd he prays to be allowed to redeem the premises from the tax sale foreclosure, and for the foreclosure of his mortgage. To this amended petition Hans Thun entered a demurrer, alleging that it did not state facts sufficient to constitute a cause of action or to entitle the plaintiff to the relief demanded.

It will be noticed that the original petition filed by the plaintiff asked no relief other than the foreclosure of his mortgage. The amended petition filed on September 5, 1903, while asking a foreclosure of the plaintiff’s mortgage, also set up an entirely different and independent cause of action against the defendants, viz., the right to redeem any interest in the land which the defendants had acquired under a tax foreclosure sale. It was held in *Selby v. Pueppka,*73 Neb. 179, that section -3, article IX of the constitution of the state, providing for two years’ time within,which to redeem from tax sales, applies to judicial as well as administrative sales. In that case it Avas urged that the confirmation of the sale and the making of a deed cut off the OAvner’s right to redeem, and this Avas the intimation of the court in *Logan County v. McKinley-Lanning Loan & Trust Co.,*70 Neb. 406. In that case the question Avas not squarely before the court and Avas not the principal question considered. Objection Avas made to a confirmation of the sale upon the theory that such confirmation Avould extinguish the OAvner’s right to redeem, and the case Avas apparently argued upon that theory; but the question of whether a confirmation Avould have that effect was not before the court and was not determined. In the *Selby*case the question was squarely raised and it is said:

> “The terms of the constitution are very SAVeeping. Art. IX, sec. 3. A right of redemption is given from all sales of real estate for the nonpayment of taxes for tAvo years after the sale. This provision has been held to be self-executing. *Lincoln Street R. Co. v. City of Lincoln,*61 *834Neb. 109. It has also been declared to apply to judicial sales as well as to administrative sales. *Logan County v. Carnahan,*66 Neb. 685. We see no reason for suggesting any change in the ruling. The confirmation applied only to the regularity of the proceeding. It held the sale valid and regular, but in no way adjudicated the right of redemption from it. The latter existed by virtue of a self-executing constitutional provision independent of the court. The court’s action must be held to have been taken with this right in view. Of course, in this view, that confirmation, like the other proceedings in this sale, was had provisionally and subject to the right of redemption — the costs of the sale, as well as the costs of foreclosure, being-added to the taxes and interest in making the redemption.”

We are still satisfied Avith this view of the case, and the plaintiff’s amended petition asking to redeem, having been filed more than two years after the land had been sold for taxes, the plaintiff’s right of redemption had expired. It is claimed that the decree foreclosing the tax lien is void because the defendant, “Globe Investment Company,” Avas summoned under the name of “The Globe Investment Company,” and that “Henry A. Wyman,” receiver of the Globe Investment Company, was summoned as “H. A. Wyman,” only the initial of his first name being used, and that notice by publication only was given. The variation in the name of the corporation was so slight as to leave no doubt of its identity, and is wholly immaterial. *Lane v. Innes,*43 Minn. 137. The receiver of a corporation appointed by the courts of another state not being a necessary party to an action brought against the corporation in this state, the failure to give the real and true name of Wyman in the proceeding is of no account.

It is further objected that the court was without jurisdiction to foreclose the tax certificate held by Toy, it being-issued on a sale made nine years previous to the filing of his cross-bill. That the lien for taxes originally held by Toy under this certificate had, in the language of this court in *Alexander v. Shaffer,*38 Neb. 812, become “ex*835tinguished absolutely” by bis failure to foreclose it within tbe time allowed by statute is true, but that tbe court mistook tbe law, and gave Toy a decree for tbe amount claimed, did not oust it of jurisdiction to bear and determine tbe case. Tbe decree was erroneous and reversible on appeal, but not void and subject to collateral attack.

Again, tbe tax lien held by Skillman bad not been barred and the decree, to.the extent that it awarded him relief, was in all respects legal and free from error. That it included an amount erroneously awarded to Toy could affect tbe plaintiff only as to tbe amount that be should pay in case of redemption, if be was awarded tbe right to redeem.

It is further urged that tbe plaintiff owning tbe mortgage at tbe time was not a party defendant to tbe tax foreclosure suit, and that bis right of redemption has not been extinguished by tbe decree. Tbe plaintiff by his bill is seeking to enforce a right of redemption as distinguished from an equity of redemption; a right based upon a provision of tbe constitution and tbe statutes of tbe state, and it is by these provisions that bis right is to be measured and determined and not by tbe decree entered by tbe district court in tbe tax foreclosure action, which, as before stated, did not attempt to determine or cut off the privilege awarded him by tbe laws of tbe state to redeem from the tax sale within two years from its date. Tbe difficulty under which be labors is that this right was not asserted within tbe time limited, and bis right to redeem has been barred by lapse of time, fixed, not by tbe decree, but by statute.

We conclude that the court was right in sustaining tbe defendant’s demurrer to tbe plaintiff’s amended petition, and we recommend tbe affirmance of the order.

Albert and Jackson, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, the order of the district court is

Affirmed.