Wood v. Helmer

• Decision Date: 17 March 1880
• Citation: 10 Neb. 65,4 N.W. 968
• Parties: WOOD AND OTHERS v. HELMER.
• Court: Nebraska Supreme Court

10 Neb. 65

4 N.W. 968

WOOD AND OTHERS

v.HELMER.

Supreme Court of Nebraska.

Filed March 17, 1880.

Error from the district court for Lancaster county.England & Snelling, for plaintiffs in error.

Harwood & Ames, for defendant in error.

MAXWELL, C. J.

In November, 1878, the plaintiffs filed a petition in the district court of Lancaster county praying for an injunction to restrain the treasurer of said county from executing a tax deed upon certain real estate in Midland precinct, in said county, which had previously been sold to Charles R. Dewey by said treasurer for the taxes due thereon for the year 1876, and that the purchaser of said lands at tax sale may be required to surrender his certificates, and that the same shall be cancelled, and for such other relief as may be just and right.

The sole ground upon which relief is sought is, that the assessor for the year failed to make and attach the oath required by the statute to the assessment roll. An answer was filed by the defendant to the petition, in substance denying the material allegations of the petition, and alleging that said lands were legally sold. On the trial of the cause, two assessment rolls from that precinct, for the year the lands in question were assessed and sold, were introduced in evidence, one of real estate and one of personal property in said precinct, the statutory form of oath of the assessor being attached to the roll containing the list of personal property. Whether the lists were returned by the assessor to the county clerk in this manner does not appear. The court found generally for the defendant and dismissed the action. The plaintiffs appeal to this court.

The plaintiffs place great reliance upon the case of Morrill v. Taylor, 6 Neb. 236. That was an action of ejectment to recover the possession of certain real estate sold for taxes. In that case it was expressly stipulated “by and between the parties that the assessment rolls for the years 1869, 1870 and 1871, which included the land in question, nor any of them, did not have any oath of any assessor attached, as the statute provides;” and, further, that the notice of sale of 1871, for taxes of 1870, was advertised to commence on the first Tuesday, instead of the first Monday, in September, and that the notice of sale for taxes of 1871 fixed the place of sale at the front door of the treasurer's office, whereas the deed recited that it actually took place at the door of the court-house. It was held in effect that it having been agreed between the parties that there was no valid assessment, therefore the tax deeds relied upon failed, and the title having failed there was nothing upon which the lien given by statute could attach.

The decision is placed upon the ground that a party cannot be divested of his title to real estate by tax proceedings without a substantial compliance with the statute providing for the assessment and collection of taxes. And where it is conceded, as in that case, that an essential prerequisite to the right to tax had not been complied with, the title must fail; that is, the party having relied upon his tax deeds, which, having failed, then defendant could not resist the plaintiff's right to the possession of the land. But is the land-owner in as favorable position when he invokes the aid of a court of equity to enjoin a tax deed from being executed by the treasurer to the purchaser at tax sale of his real estate, upon the ground alone that the oath was not made and attached to the assessment roll? An examination of the statute and the authorities will determine.

Section 51 of the revenue law provides that “taxes upon real estate are hereby made a perpetual lien therefor, commencing from the first day of March of the current year, against all persons and bodies corporate, except the United States and this state.” Section 1 of art. 9 of the Constitution provides that “the legislature shall provide such revenue as may be needful by levying a tax, by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her, or its property and franchises, the value to be ascertained in such manner as the legislature shall direct,” etc.

Section 4 provides that “the legislature shall have no power to release or discharge any county, city, township, town or district whatever, or the inhabitants thereof, or any corporation, or the property therein, from their or its proportionate share of taxes to be levied for state purposes, or due any municipal corporation; nor shall commutation for such taxes be authorized in any form whatever.” It will be seen that by our statute taxes are made a perpetual lien upon real estate, and that the legislature has no power whatever to release property from the payment of its due proportion of taxes.

In Frazier et al. v. Serbern, 16 Ohio St., the plaintiffs were shareholders in the First National Bank of Cincinnati, and in the year 1865 their several shares in the bank were assessed as personal property at their par value, no deduction being made for capital invested in United States bonds, nor for real estate which was taxed to the bank. The act of congress authorizing national banks provides that shares shall not be assessed for state taxes at a greater rate than that imposed upon “other moneyed capital in the hands of individuals of the state,” and that the tax shall not exceed the rate imposed upon the shares in any of the banks organized under the authority of the state where such bank or association is located.

The plaintiffs allege in their petition for an injunction that the tax sought to be enjoined was unauthorized by law and in violation of the above provisions of the act of congress. It was also alleged that shares in the state banks were not subject to taxation, and that the banks themselves were taxed at a much lower rate than was assessed upon the plaintiff. The court held in substance that the shares were not subject to taxation, but that the plaintiffs were not entitled to an unconditional injunction against the collection of the tax. The court say: “They ask equity and must do equity. They invoke the exercise of an extraordinary power of the court for their relief, and the court in its discretion should refuse that relief except upon conditions that are equitable and just. We think, therefore, that the injunction should be granted, upon the condition that the plaintiffs or their bank shall pay to the treasurer of Hamilton county a sum that shall be pro rata equivalent for the tax imposed upon the state and independent banks,” etc.

In Morrison v. Hershire, 32 Iowa, 271, the petition alleged that the plaintiffs were residents and property holders of Iowa City; that by certain ordinances and resolutions passed by the city council parts of certain streets which were used as a thoroughfare between the railroad depot and the business portion of the city had been improved, and the cost of the improvement assessed upon the lots abutting upon the streets, each lot being assessed with the cost of the improvement of the street adjacent thereto, and that the plaintiffs were separately the owners of such lots; and that the special tax so levied had been placed upon the county tax books and delivered to the collector for collection. The plaintiff then set out the ordinances and resolutions under which the tax was levied, and alleged that the assessment was illegal and void. The court say: “We understand that it is a settled rule in equity that when a party is in conscience bound to pay a certain sum of money which, together with an amount he is not legally bound to pay, is brought as a legal claim against him, equity will not restrain the collection of the whole, unless he pay or offer to pay, or tender the sum, which he justly and legally owes;” citing Stughan v. Brown, 7 Iowa, 33;Sloan v. Carlburgh, 10 Iowa, 31;Cassady v. Bostle, 11 Iowa, 342;Stanley v. Gadsly, 10 Pet. 596;The City of Annapolis v. Gilmore, 30 Ind. 415. The demurrer to the petition was sustained.

In the case of Harrison v. Haes, 25 Ind. 281, Haes filed a petition in the Morgan circuit court, stating that he was the owner of certain real estate which had been sold for taxes, and that a certificate of purchase had been executed by the auditor to the purchaser at the tax sale. It was also alleged that at the time of the assessment and levy of said taxes the plaintiff was the owner of personal property in said county liable to sale for taxes, of the value of $500, and that he was still the owner of the same; that the treasurer, without searching for personal property, advertised and sold said real estate. The plaintiff prayed that said certificate be cancelled, and that the auditor be enjoined from making a deed to the purchaser at tax sale. The court held that a demurrer to the petition should have been sustained. The court say: “He asks a court of equity to place him in a better position than he would have occupied if he had at the proper time paid the taxes legally assessed against him, and which were a lien upon his land; that the court shall remove the cloud...