John v. Connell

• Decision Date: 06 February 1901
• Docket Number: 9,373
• Parties: DAVID C. JOHN, APPELLEE, v. WILLIAM J. CONNELL ET AL., APPELLANTS. [*]
• Court: Nebraska Supreme Court

85 N.W. 82

61 Neb. 267

DAVID C. JOHN, APPELLEE, v. WILLIAM J. CONNELL ET AL., APPELLANTS. ^[*]

No. 9,373

Supreme Court of Nebraska

February 6, 1901

APPEAL from the district court for Douglas county. Heard below before POWELL, J. Reversed.

Reversed and remanded, with direction.

Connell & Ives, for appellants.

Henry P. Leavill and William D. Beckett, contra.

OPINION

SULLIVAN, J.

This action to foreclose a tax lien was brought by David C. John against William J. Connell in the district court for Douglas county. It is claimed that the lien results from a tax sale based upon a special assessment made by the proper authorities of the city of Omaha to defray the cost and expense of grading Poppleton avenue between Twentieth and Thirty-sixth streets. It is alleged in the petition and shown by the proof that in 1892 the defendant's lot was, by the county treasurer, sold for the satisfaction of a delinquent grading assessment; that the plaintiff was the purchaser that he received a tax-sale certificate in the usual form and that he afterwards paid other general and special taxes charged against the property. The court found that the special assessments were void, but that the general taxes were valid; it also found that the plaintiff was the owner by subrogation of the lien for general taxes and rendered a decree enforcing the same. Both parties appeal. The defendant insists that the tax sale was not grounded upon a valid tax and that, therefore, the plaintiff acquired neither a lien upon the property nor the right to pay taxes levied against it for subsequent years.

At the time Poppleton avenue was ordered graded by the city authorities the charter of 1887 had been adopted and was in force. By section 117 (Session Laws, 1887, ch. 10) it was provided: "Before any street, avenue, or alley shall be ordered graded, the damages, if any, by reason of such grading to property along that portion of the street proposed to be graded, including approaches thereto, shall first be ascertained and determined by three disinterested freeholders, who shall be appointed by the mayor and council for that purpose, who shall make such appraisement, taking into consideration the benefits, if any, to such property, and who shall exclude any damages resulting from any change or changes of the original or first established grade, and the amount of damages so assessed, unless an appeal is taken, shall be due and payable to such property owners, or their agents, in sixty days after the completion and acceptance of such work of grading." The requirement of this section in regard to the ascertainment of damages was, in our opinion, mandatory and indispensable; it was a condition precedent to the exercise of the power to order the grading to be done. Our former decisions compel us to this conclusion. Smith v. City of Omaha, 49 Neb. 883, 69 N.W. 402; Ives v. Omaha, 51 Neb. 136; Merrill v. Shields, 57 Neb. 78, 77 N.W. 368; Henderson v. City of South Omaha, 60 Neb. 125, 82 N.W. 315; Von Steen v. City of Beatrice, 36 Neb. 421, 54 N.W. 677; State v. Birkhauser, 37 Neb. 521, 56 N.W. 303; Harmon v. City of Omaha, 53 Neb. 164, 73 N.W. 671; Leavitt v. Bell, 55 Neb. 57, 75 N.W. 524. There was no attempt on the part of the city authorities to comply with section 117, supra, and consequently they never acquired jurisdiction to levy the grading tax. Not only was the sale to plaintiff unwarranted and null, but the levy itself was without lawful authority and created no lien against defendant's property.

Having concluded that the tax sale was not grounded on a valid assessment, we have next to inquire whether the court erred in giving judgment in favor of John for the general taxes which he paid on the assumption that he had obtained a lien by virtue of the treasurer's certificate. It is now thoroughly settled by the decisions of this court that, so far as the purchaser is concerned, there is no substantial distinction between tax sales that are void on account of irregularities and those that are void for want of authority in the treasurer to sell. In either case the lien of the tax for the non-payment of which the sale was made, is transferred from the public to the purchaser; and so also is the lien of any prior or subsequent tax afterwards paid by the purchaser for the protection of his rights under the treasurer's certificate. Grant v. Bartholomew, 57 Neb. 673, 78 N.W. 314; Adams v. Osgood, 60 Neb. 779, 84 N.W. 257. The defendant, however, contends that the right to pay subsequent taxes does not exist in favor of a person who has only an apparent and not an actual lien upon the property. It is said that in such case there can be no subrogation, because that right does not belong to one who makes a payment voluntarily, and not for the protection of some right or interest which he has in the property. Such is the rule laid down in Sheldon on Subrogation, sec. 240, and it is not questioned here; but it has been held in this state that the holder of a tax-sale certificate is not a volunteer, even though the land described in the certificate is exempt from taxation. Wilson v. Butler County, 26 Neb. 676, 42 N.W. 891. In the case just cited MAXWELL, J., speaking for the court, said (p. 683): "A party having a lien on real estate, or having reason to...