McClure v. Warner

• Decision Date: 09 September 1884
• Citation: 16 Neb. 447,20 N.W. 387
• Parties: MCCLURE v. WARNER.
• Court: Nebraska Supreme Court

16 Neb. 447

20 N.W. 387

MCCLURE

v.WARNER.

Supreme Court of Nebraska.

Filed September 9, 1884.

Appeal from Lancaster county.

A. G. Scott, for plaintiff.

N. C. Abbott, for defendants.

MAXWELL J.

This action was brought in the district court of Lancaster county to foreclose certain tax liens upon real estate. It is alleged in the petition that in September, 1874, the plaintiff purchased at private tax sale the E. 1/2 of the S. W. 1/4 of section 8, township 8 N., range 7 E., for the amount of taxes, and interest due thereon, being the sum of $26.33; that afterwards he paid the taxes on said land for 1874 and 1875; that in March, 1878, he surrenderedhis certificate of purchase and received a tax deed for said premises; that said land was subject to taxation for the years 1873, 1874, and 1875, and was assessed and taxes duly levied thereon for those years, etc. It is also alleged that the title acquired by the tax deed has failed, and the plaintiff prays for a decree enforcing the tax lien. The defendants, in their answer, state “that for the years 1873, 1874, and 1875 there was no assessment for the precinct of Saltillo, the precinct in Lancaster county in which the land in the petition described is situated, for that there was no certificate of the assessor of that precinct attached to or returned with the pretended assessment rolls for said years, or either of them; and that, if any levy was made on said land for either of said years, it was done without authority of law, and void for the reason aforesaid,” etc. In the second count of the answer it is alleged that the defendant Warner had sufficient personal property in said county, at the time said taxes became due, to pay the same. The third and fourth counts are pleas of the statute of limitations. A demurrer to the answer was sustained, and a decree rendered in favor of the plaintiff. The defendants appeal.

The questions presented will be considered in their order:

First. That no action at law has been brought to test the validity of the plaintiff's title. This question was before this court in Shelly v. Towle, ante, 251, and it was held that the holder of a tax deed may bring an action on the deed, and allege that the title acquired thereby has failed, and in the same petition seek to foreclose his tax lien. Miller v. Hurford, 13 Neb. 20; S. C. 12 N. W. REP. 832. The law does not require an action at law to be brought where it is apparent on the face of the proceedings, or through defects therein, that the tax deed is invalid. There is no force, therefore, in this objection.

Second. That the statute of limitations has run against the claim. In several cases decided by this court it was held that the statute did not begin to run against the lien until the title acquired by the tax deed had failed, ( Bryant v. Estabrook, ante, 245; Otoe Co. v. Brown, ante, 274; Schoenheit v. Nelson, ante, 205;) and that this was to be determined by the time that the tax deed was declared to be invalid. The sale in question took place since the amendment of 1871 to the revenue law. The question of adverse possession does not arise in the case, and the pleadings fail to show that an action to foreclose the tax lien is barred.

Third. That there was no certificate of the assessor attached to or returned with the assessment roll. The failure of the assessor to take the oath required by law will render the tax invalid. McNish v. Perrine, 14 Neb. 582;S. C. 16 N. W. REP. 837;Hallo v. Helmer, 12 Neb. 87;S. C. 10 N. W. REP. 568;Lynam v. Anderson, 9 Neb. 367;S. C. 2 N. W....