Adams v. Osgood

• Decision Date: 21 November 1900
• Citation: 60 Neb. 779,84 N.W. 257
• Parties: ADAMS v. OSGOOD.
• Court: Nebraska Supreme Court

60 Neb. 779

84 N.W. 257

ADAMS

v.OSGOOD.

Supreme Court of Nebraska.

Nov. 21, 1900.

Syllabus by the Court.

1. Between tax sales that are void for mere irregularities, and those that are void for want of authority in the treasurer to sell, the laws of this state make no distinction.

2. A void tax sale is effective in every case, as an assignment of the rights of the public to the purchaser.

3. The holder of a tax-sale certificate is subrogated to the rights of the public in any taxes which he pays for the purpose of protecting his lien, whether such taxes were levied before or after he became the owner of such lien.

4. The owner of a tax-sale certificate may enforce his lien by an action in the nature of a suit to foreclose a real-estate mortgage.

5. An admission by the defendant, in an action to foreclose a tax lien, that taxes for certain years were charged against his property and that he had, before the suit was instituted tendered to the treasurer the amount of such taxes for the purpose of effecting a redemption is, in the absence of countervailing proof, sufficient to establish the validity of the taxes to which the admission relates.

6. An assessment and levy for general revenue are always evidence of a valid tax.

7. In an action involving the validity of a tax for general revenue, it will be presumed, in the absence of proof to the contrary, that the taxing authorities discharged the duties imposed upon them, and that the board of equalization held annual sessions at the time required by law.

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

Action by J. McGregor Adams against Ralph R. Osgood. Judgment for defendant and plaintiff appeals. Affirmed.John L. Webster, for appellant.

H. W. Pennock, Chas. Robbins, Lambertson & Hall and C. C. Marley, for appellee.

SULLIVAN, J.

This cause has been twice decided by this court, and twice remanded to the district court for further proceedings. Adams v. Osgood, 42 Neb. 450, 60 N. W. 869;Id., 55 Neb. 766, 76 N. W. 446. The plaintiff, J. McGregor Adams, charged in the petition that his title to certain Omaha real estate was clouded by two void tax-sale certificates and other pretended tax liens held by the defendant, Ralph R. Osgood. Osgood answered, alleging that the certificates and liens referred to in the petition were valid, and praying for a foreclosure of the same. The plaintiff having dismissed his cause of action after the first judgment of reversal, there was a trial only of the issues formed by the answer and reply. The district court found in favor of the defendant, and rendered a decree of foreclosure, from which plaintiff appeals.

Counsel for Adams contends that the sales upon which the tax certificates are based were prematurely made, and therefore void. For the purposes of this case, let that be conceded. Under our decisions, the difference between a valid and a void tax sale, so far as the purchaser is concerned, is not very great. In either case he succeeds to the rights of the public. The lien of the tax, for the nonpayment of which the land was sold, is transferred to him; and so, also, is the lien of any prior or subsequent tax afterwards paid by him to protect his rights under the tax-sale certificate. Between sales that are void for mere irregularities and those that are void for want of authority in the treasurer to sell, the decisions in this state make no distinction whatever. The sale is in every case effective as an assignment of the rights of the public to the purchaser. Merriam v. Hemple, 17 Neb. 345, 22 N. W. 775;Roads v. Estabrook, 35 Neb. 297, 53 N. W. 64;Adams v. Osgood, 42 Neb. 450, 60 N. W. 869;Medland v. Connell, 57 Neb. 10, 77 N. W. 437;Grant v. Bartholomew, 57 Neb. 673, 78 N. W. 314. Ragan, C., discussing the question when the case was first here, said: “Osgood, then, by virtue of the purchase he made of these lots in 1888, and by virtue of the taxes paid thereon, both prior and subsequent to that date, to protect...