LEIGH V. GREEN, 193 U. S. 79 (1904)

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U.S. Supreme Court

Leigh v. Green, 193 U.S. 79 (1904)

Leigh v. Green

No. 119

Argued January 13, 1904

�Decided February 23, 1904

193 U.S. 79


Where the claim that a state statute is unconstitutional is first made on a motion for rehearing in the highest court of the state, and the motion is entertained and the federal question decided against the contention of the plaintiff in error, the question is reviewable in this Court. Mallett v. North Carolina, 181 U. S. 589.

Where the state seeks directly or by authorization to others to sell land for taxes upon proceedings to enforce a lien for the payment thereof, and the owner is unknown, it may proceed directly against the land within the jurisdiction of the court, and a notice which permits all interested who are "so minded" to ascertain that it is to be subjected to sale to answer for taxes, and to appear and be heard, whether to be found within the jurisdiction or not, is due process of law within the Fourteenth Amendment to the Constitution.

The statute of Nebraska, Laws, 1875, February 19, p. 107, for the enforcement of liens for taxes by sale of the property is not repugnant to the due process clause of the Constitution because in certain cases it permits, under the provisions prescribed in the statute, a proceeding in rem against the land.

The facts essential to the determination of this case are briefly summarized as follows: Irwin Davis was the owner of certain lands in Knox County, Nebraska. On the twenty-fourth day of November, 1880, an action was begun by Algernon S. Patrick against Davis in the district court of the county, and an attachment was issued and levied upon the lands. The case was afterwards removed to the Circuit Court of the United States for the district of Nebraska, on October 18, 1882, where, on January 21, 1890, an order for the sale of the lands in question was made for the satisfaction of the judgment, and the same were sold on May 15, 1894, by the United States marshal to Lionel C. Burr. Burr afterwards conveyed the lands to Crawford and Peters. On June 23, 1894, Crawford and Peters conveyed the premises to Alvin L. Leigh, the plaintiff in error in the present case.

Pending said attachment proceedings, on December 28, 1882,

Page 193 U. S. 80

a deed was filed for record in the clerk's office of Knox County purporting to convey the lands to Henry A. Root on October 8, 1880. Afterwards, on May 12, 1894, a decree was rendered in the District Court of Douglass County, Nebraska, in a cause wherein said Patrick was plaintiff and Davis and others were defendants, setting aside the deed from Davis to Root as fraudulent and void as against the said Patrick.

In 1891, actions were brought in the District Court of Knox County, wherein the Farmers' Loan & Trust Company was plaintiff and Henry A. Root and different subdivisions of the lands were defendants, for the foreclosure of certain tax liens, which actions, taken together, cover the lands in controversy in the present suit.

In the same year, 1891, decrees were entered in those cases, and orders made directing the sale of the lands for the satisfaction of the amounts found due by the decrees. In pursuance of said decrees, the lands were sold by the sheriff to Henry S. Green, defendant in error in the present action. The deeds of conveyance were made and delivered to him by the sheriff. Plaintiff in error claims title because of the attachment proceedings, and defendant in error bases his claim to title upon the proceedings had for the foreclosure of the tax liens. This suit was brought by the plaintiff in error Leigh, in the District Court of Knox County, to quiet title to the lands in controversy.

In that court, a decree was rendered in favor of the plaintiff in error Leigh, which decree was reversed by the Supreme Court of Nebraska, and the cause remanded with directions to render a decree in favor of the defendant Green.

This writ of error is prosecuted to review the judgment of the Supreme Court of Nebraska. 64 Neb. 533.

Page 193 U. S. 85

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