Abbott v. Coates

• Decision Date: 19 June 1901
• Citation: Abbott v. Coates, 86 N. W. 1058, 62 Neb. 247 (Neb. 1901)
• Parties: ABBOTT ET AL. v. COATES.
• Court: Nebraska Supreme Court

62 Neb. 247

86 N.W. 1058

ABBOTT ET AL.

v.COATES.

Supreme Court of Nebraska.

June 19, 1901.

Syllabus by the Court.

1. The grantee in a sheriff's deed executed on a confirmation of sale in a proceeding to fore close a tax lien may maintain ejectment against an adverse claimant to the lands described therein; the proceeding by forcible entry and detainer being a cumulative, and not an exclusive, remedy for such relief.

2. The office of a description in a sheriff's deed is not to identify lands, but to provide the means of identification, and it is sufficient when this is done.

3. Extrinsic evidence is admissible to locate lands conveyed by a sheriff's deed containing an accurate, but general, description.

4. Plaintiff in an action of ejectment must rely for a recovery on the strength of his own title, and not on the want of title in his adversary.

5. Where the plaintiff's claim of title is founded on a sheriff's deed made on an order of sale in a proceeding to foreclose a tax lien, and the decree and order of sale are introduced in evidence to supplement such sheriff's deed, the decree and order of sale will control the description of the property to be sold; and where such decree and order of sale excepts certain lots in a block, but the sheriff's deed conveys the entire block, held, that as to the lots specifically excepted in the decree and order of sale such sheriff's deed conveys no title.

Error to district court, Saline county; Hall, Judge.

Action by Hamilton J. Coates against Ezra S. Abbott and others. Judgment for plaintiff. Defendants bring error. Reversed.E. S. Abbott, W. H. Morris, and Robert Ryan, for plaintiffs in error.

Hastings & Sands, for defendant in error.

OLDHAM, C.

This was an action in ejectment instituted by the defendant in error (herein styled the “plaintiff”) against the plaintiffs in error (herein styled the “defendants”) to recover the possession of certain lots and blocks in “Lane's First addition to Pleasant Hill,” in Saline county, Neb. Plaintiff claims title by virtue of a sheriff's deed executed and delivered to him on a decree and order of sale in a proceeding in the district court of Saline county, Neb., to foreclose tax liens on these lands. To this foreclosure proceeding defendants were both made parties, and answered, setting up substantially the same defense which they have interposed in this action. No appeal or error proceedings were instituted to review this judgment. Plaintiff had judgment in the court below, and defendants bring error.

Almost all the allegations of error relied on for a reversal of the judgment of the lower court are predicated on the proposition that the description in the sheriff's deed of the plaintiff is too vague and uncertain to convey any lands. This contention arises from the fact that no plat of the original town of Pleasant Hill was ever filed with the county clerk or register of deeds of Saline county, Neb., as provided by law. The plat of the addition in which the lots and blocks in controversy are situated was properly filed for record on August 4, 1871, but to locate these lands it was necessary for the trial court to admit extrinsic evidence as to location of the town of Pleasant Hill. This extrinsic evidence consisted of the notes of the county surveyor, who platted and surveyed the original town of Pleasant Hill, these notes being part of the public records of Saline county. The court also admitted in evidence a book called the “Irregular Tract Book,” which contained a plat of the original town of Pleasant Hill, made by the county surveyors of Saline county, which was preserved as a public record in the office of the register of deeds and county clerk in said county. Evidence was also admitted that for many years lots and blocks had been sold in Pleasant Hill from the plat made by the county surveyor, and that taxes had been assessed on these lots and blocks from this irregular tract book for over 20 years. Evidence was also introduced that the defendant had bought and sold lots, both in the original town of Pleasant Hill and in the addition thereto. Now, the question to be disposed of is, was this extrinsic evidence properly admissible for the purpose of aiding the description in the sheriff's deed? It has been held that it is not necessary that a sheriff's deed should of itself describe lands so that they may be located by the deed alone, but it is sufficient if the description contained in such deed furnishes the means by which the lands can be definitely located. This doctrine of the construction of a deed received the unqualified approval of this court in an able and exhaustive opinion written by Norval, J., in the case of Hubermann v. Evans, 46 Neb. 784, 65 N. W. 1045. It has also been held that extrinsic evidence is admissible to locate lands conveyed by a sheriff's deed containing an accurate but general description. Works v. State (Ind.) 22 N. E. 127;Rucker v. Steelman, 73 Ind. 396;Smith v. Crosby, 86 Tex. 15, 23 S. W. 10, 40 Am. St. Rep. 818;Brown v. Warren, 16 Nev. 228;Ward v. Saunders, 28 N. C. 382. As these authorities seem to sustain the action of the trial court in admitting extrinsic evidence, the next question which follows is as to the competency of the evidence actually admitted. On this question we think that the action of the trial court is fully sustained by the holding of this court in the case of Roads v. Estabrook, 35 Neb. 303, 53 N. W. 64. In this case, as also in the earlier case of Bryant v. Estabrook, 16 Neb. 223, 20 N. W. 245, it was held that for the...