Alexander v. Meyers

• Citation: 51 N.W. 140,33 Neb. 773
• Parties: ALEXANDER v. MEYERS ET AL.
• Decision Date: 20 January 1892
• Court: Supreme Court of Nebraska

33 Neb. 773

51 N.W. 140

ALEXANDER

v.MEYERS ET AL.

Supreme Court of Nebraska.

Jan. 20, 1892.

Syllabus by the Court.

1. In an action to foreclose a tax-lien for taxes paid in 1872, 1873, and 1874, the court below found the tax-deeds void, and rendered a decree for the taxes and interest. One of the defendants filed no answer, and the other attempted to plead adverse possession, but failed to allege that he had been in the exclusive possession of the property. Held, that the statute of limitations must be pleaded either by demurrer or answer, or its protection will be waived.

2. No error appearing in the record, the judgment is affirmed.

Appeal from district court, Cass county; FIELD, Judge.

Action by Alexander against Meyers, Billings, and Moore to foreclose a taxlien. Judgment for plaintiff. Defendants appeal. Affirmed.

Wm. L. Browne, for appellants.

MAXWELL, C. J.

This action was brought in the district court of Cass county to foreclose a tax-lien on lots 15, 17, and 18, in Stadleman's addition to the city of Plattsmouth. It is alleged that the taxes were paid for the years 1872, 1873, and 1874. The defendant Billings filed an answer, as follows: “Comes now the defendant in the above-entitled cause, and, for his separate answer to the petition of the plaintiff filed herein, states that he is the owner in fee-simple of the following described real estate, set out in plaintiff's petition; admits that the pretended deed mentioned in plaintiff's petition as the one executed by the treasurer of Cass county, Neb., to said Merriam, failed to convey the title to said lots as alleged in plaintiff's petition; and alleges that neither said Merriam nor his grantees ever had or acquired any title to said lots by reason of said pretended deed; denies that plaintiff has any right or title to or lien upon said lots. This answering defendant, for a further defense to plaintiff's petition, alleges that at the time of said pretended sales, and each of them, this defendant was the owner in fee of the real estate described in this separate answer, and that before, at, and subsequent to the time of said sales, and each of them, this defendant had, in the county where said land is situated, a sufficient amount of personal property that could have been distrained and sold for such taxes. This answering defendant, for a further defense to said petition, alleges that he has been in the actual, open, notorious, continuous, and adverse possession of said...