Adams v. Osgood

• Decision Date: 07 November 1894
• Citation: Adams v. Osgood, 42 Neb. 450, 60 N. W. 869 (Neb. 1894)
• Parties: ADAMS v. OSGOOD.
• Court: Nebraska Supreme Court

42 Neb. 450

60 N.W. 869

ADAMS

v.OSGOOD.

Supreme Court of Nebraska.

Nov. 7, 1894.

Syllabus by the Court.

1. A county treasurer cannot make a valid public or private sale of real estate for nonpayment of delinquent taxes due thereon, unless in such sale are included all taxes, with interest and costs, then delinquent against such real estate. State v. Helmer, 4 N. W. 367, 10 Neb. 25;Tillotson v. Small, 13 N. W. 201, 13 Neb. 202;O'Donohue v. Hendrix, 13 N. W. 281, 13 Neb. 257, reaffirmed.

2. The rule of caveat emptor applies with full force to a purchaser of real estate sold for the nonpayment of delinquent taxes. Pennock v. Douglas Co. (Neb.) 58 N. W. 117, reaffirmed.

3. The sale of real estate by county treasurer for delinquent taxes due thereon for one year does not discharge either state, county, or city taxes assessed against such real estate for prior years, which taxes were not included in such sale.

4. The only way by which a valid tax assessed against real estate in this state can be discharged is by the payment of such tax, unless such real estate be sold therefor, and the holder of the tax lien fails to bring suit to foreclose the same for five years after the expiration of the time to redeem.

5. The tax sales and liens mentioned in sections 119 and 181 of the revenue law of 1879 have reference only to valid tax sales and valid liens arising therefrom.

6. Until a county treasurer has made a return to the county clerk of his county of the public sale of lands for taxes held by him in pursuance of section 109 of the revenue act of 1879, he has no authority to sell lands at private sale for delinquent taxes due thereon.

7. Where a sale made of real estate for taxes is invalid, the purchaser thereat, for the taxes for which he purchased the real estate, and for all prior and subsequent taxes existing against said real estate paid by him because of his purchase, becomes subrogated to all the rights of the public to the liens existing against said real estate for such taxes, and entitled to the same rate of interest, and no greater, on the taxes paid, which the delinquent taxes were drawing when he paid them. Dillon v. Merriam, 34 N. W. 344, 22 Neb. 151, reaffirmed.

8. Where an owner of real estate brings suit to cancel an alleged invalid tax-sale certificate, and the holder of such certificate admits in his answer to the action its invalidity, asks to be subrogated to the rights of the public to the liens for the taxes on which said certificate is based, and to foreclose such lien against said real estate, he is not entitled to an attorney's fee of 10 per cent. of the amount of the decree he may recover, to be taxed as part of the costs in the case.

9. Whether a holder of a tax lien, on obtaining a decree foreclosing the same, is entitled to an attorney's fee, under section 181 of the revenue law of 1879, is not to be determined by the status of the lien holder in the case. Whether he be a plaintiff or a defendant is wholly immaterial. The test as to whether such lien holder is entitled to an attorney's fee is whether the lien foreclosed has for its basis a valid tax sale. If the sale on which the lien is based was valid, then the holder of the lien is entitled to an attorney's fee; if the sale was invalid, he is not entitled to the attorney's fee.

10. An owner of real estate brought suit to cancel a tax-sale certificate and taxes assessed against said real estate for certain years, and paid by the holder of the certificate. The owner alleged in his petition, in general terms, that the tax-sale certificate was void; that the taxes paid were never assessed against the real estate, and were not liens thereon. At the same time, he tendered into court an amount of money, which he alleged was sufficient to pay and discharge said tax liens for said years. The holder of the tax certificate admitted its invalidity; asked to be subrogated to the rights of the public to the lien for the taxes on which said certificate was based, and taxes paid by him assessed against said real estate by reason of his purchase thereof; and prayed to foreclose said tax lien and taxes against said real estate. Held:

(1) That the owner, by his tender of a sum of money in payment of the taxes for certain years, thereby admitted that the taxes appearing against said real estate on the treasurer's books for said years were legally assessed against it.

(2) That the burden of showing that any of the taxes for any of said years had never been assessed against the real estate, were for any cause illegal, had been discharged, or that they were not liens upon the real estate, was upon the owner.

(3) That the holder of the tax-sale certificate and tax liens, to prove his case and establish his lien, was only required to prove what amount of taxes he paid, and when he paid them; and the tax-sale certificate and tax receipts of the treasurer of the county were competent evidence for that purpose.

Appeal from district court, Douglas county; Irvine, Judge.

Action by J. McGregor Adams against Ralph R. Osgood to cancel tax sales, and also defendant's lien for taxes paid on the land. From a judgment granting plaintiff part of the relief asked, both parties appeal. Reversed.

Henry W. Pennock, for plaintiff.

John L. Webster, for defendant.

RAGAN, C.

On the 13th day of August, 1889, Ralph R. Osgood purchased lots 3 and 4 in block 52 in the city of Omaha, Douglas county, from the treasurer of said county, at private tax sale for the city taxes of the city of Omaha due and delinquent on said lots for the year 1888. At this time there were unpaid delinquent state and county taxes standing against these lots on the books of said county treasurer for the years 1880, '81, '82, '83, '84, '85, '86, '87, and '88; and unpaid delinquent city taxes of the city of Omaha for the years 1868, '69, '70, '71, '72, '80, '81, '82, '83, '84, '85, '86, and '87, all of which Osgood paid; and he subsequently paid, as they fell due, the state, county, and city of Omaha taxes against said lots for the years 1889 and 1890. From 1873 to the 25th of July, 1890, these lots were owned by one George W. Frost or his heirs, and were sold in the year 1873 by the county treasurer of Douglas county for the delinquent state and county taxes of 1872. Sales of these lots for state and county taxes thereon for the years 1873, '74, '75, '76, and '77, or some of them, were afterwards made. The purchaser of these lots at these sales of his assignee paid all state and county taxes against the lots up to and including the taxes for the year 1879. All the liens acquired against these lots by these tax sales, and for payments of taxes on the lots up to and including the year 1879, finally came to be owned by one Bryant; and he, by a decree of the circuit court of the United States for the district of Nebraska, was given a lien against these lots for all such taxes. This decree or judgment Bryant assigned to J. McGregor Adams, who, on July 25, 1890, became the owner of the lots by deed from the heirs of George W. Frost. When the county treasurer sold the lots in 1873, he did not sell them for the city of Omaha taxes then due and delinquent thereon, nor were the city of Omaha taxes included in any sale of the lots subsequently made. The state and county taxes against these lots prior to the year 1880 are in no manner involved in this action. Adams brought this suit to the district court of Douglas county against Osgood, and tendered in court a sum of money which he alleged was sufficient to pay all taxes, with interest thereon, assessed against said lots after and including the year 1880. He alleged in his petition, in substance, that the lien of the city of Omaha for all taxes on these lots prior to the year 1880 had been divested and discharged by the sale of the lots, for delinquent state and county taxes only, in the years 1873, '74, '75, '76, and '77; and that the sale made by the county treasurer of these lots to Osgood, on the 13th of August, 1889, was void, and that the city taxes paid on said lots by Osgood for all years prior to 1880 were void or voluntary payments; and he prayed for a decree canceling the tax-sale certificate issued by the county treasurer to Osgood on the 13th of August, 1889, and a decree that Osgood had no lien on the lots on account of said tax-sale certificates, or on account of the payment of taxes made by him on said property for years prior to the year 1880. Osgood filed an answer in the nature of a cross bill, setting out the purchase of the lots from the treasurer of Douglas county on August 13, 1889, and the taxes paid by him for state, county, and city purposes, as already stated herein, and prayed the court to award him a decree against said lots for such taxes and interests and an attorney's fee. The district court found and decreed that the defendant, Osgood, was entitled to a lien upon said lots for taxes and special assessments paid by him and assessed against said lots for the year 1880 and thereafter, and that the amount of Osgood's lien against said lots for said time should draw interest at the rate of 20 per cent. per annum for two years from the dates of the payments made by him, and ten per cent. per annum thereafter. The court further found and decreed that Osgood was entitled to an attorney's fee of $429.24, to be taxed as part of the costs in the action. The court also found and decreed that the city taxes for the years 1868, '70, '71, and '72 upon each of said lots, and the city taxes for the year 1869 upon said lot 3, which had been paid by Osgood, were not a lien upon said lots, or either of them; and that, by paying said taxes, Osgood had acquired no lien upon said lots. The court further found and decreed that the failure of the county treasurer to include the city of Omaha taxes, delinquent on said lots for the years 1868 to 1872, inclusive, in the sale made of said lots for taxes in the year 1873, divested the lien of said...