Abbott v. Coates

• Decision Date: 19 June 1901
• Docket Number: 9,913
• Citation: Abbott v. Coates, 86 N. W. 1058, 62 Neb. 247 (Neb. 1901)
• Parties: EZRA S. ABBOTT ET AL. v. HAMILTON J. COATES
• Court: Nebraska Supreme Court

86 N.W. 1058

62 Neb. 247

EZRA S. ABBOTT ET AL. v. HAMILTON J. COATES

No. 9,913

Supreme Court of Nebraska

June 19, 1901

ERROR from the district court for Saline county. Tried below before HALL, J. Reversed.

REVERSED AND REMANDED.

Ezra S Abbott, for himself, W. H. Morris and Robert Ryan, with him.

Hastings & Sands, contra.

Argued orally by Robert Ryan for plaintiffs in error, and by Addison S. Tibbets for defendant in error.

OLDHAM C. SEDGWICK and POUND, CC., concur.

OPINION

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, Nebraska. 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 Nebraska, 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, Nebraska, 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 the 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 twenty 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, 120 Ind. 119, 22 N.E. 127. Rucker v. Steelman, 73 Ind. 396; Smith v. Crosby, 86 Tex. 15, 23 S.W. 10; Brown v. Warren, 16 Nev. 228; Ward v. Saunders, 28 N.C. 382, 6 Ired. Law 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. 297, 303, 53 N.W. 64. In this case, as also in the earlier case of Bryant v. Estabrook, 16 Neb. 217, 223, 20 N.W. 245, it was held that for the purpose of enforcing the collection of tax liens it was not necessary that a plat of an addition to a city or village should be legally recorded; and in Roads v. Estabrook, supra, evidence of the exact nature of that admitted in the case at bar was received with approval.

Defendants contend that the decision in this case is governed by the decision in the case of Lane v. Abbott, 23 Neb. 489 37 N.W. 82. That case was a suit in ejectment instituted by Lane against this defendant to recover the possession of all or a part of the lots now in controversy. Lane claimed title by deeds from owners of the different lots in the addition which he had received subsequent to the deed which he had executed to Abbott for the entire quarter-section in which this addition was located. Abbott had judgment...