Baldwin v. Merriam

• Decision Date: 16 July 1884
• Citation: Baldwin v. Merriam, 16 Neb. 199, 20 N.W. 250 (Neb. 1884)
• Parties: HENRY BALDWIN, APPELLEE, v. SELDEN N. MERRIAM, APPELLANT
• Court: Nebraska Supreme Court

20 N.W. 250

16 Neb. 199

HENRY BALDWIN, APPELLEE, v. SELDEN N. MERRIAM, APPELLANT

Supreme Court of Nebraska

July 16, 1884

APPEAL from Cass county. Heard below before POUND, J.

Affirmed.

Covell & Ransom, for appellant.

Smith & Beeson, for appellee.

OPINION

MAXWELL, J.

This action was brought in the district court of Cass county to cancel certain tax deeds and quiet title. On the trial of the cause the court found that the tax deeds were invalid and canceled the same as a cloud on the plaintiff's title and found that there was due the defendant for taxes paid on the land in question, with interest, the sum of $ 355.83 which was a lien on said premises, each party to pay one-half of the costs of the action. The defendant appeals.

All of the questions presented have been decided by this court in several cases, but will be briefly reviewed.

1. In September, 1873, the defendant procured a tax deed for the land in controversy for the taxes due thereon for the year 1870. Without stopping to enquire as to the manner of assessment--upon which a very large amount of testimony was taken--we find the tax deed invalid for two reasons, which appear on its face, viz., the failure to recite the place of sale and want of the official seal of the treasurer. Reed v. Merriam, 15 Neb. 323, 18 N.W. 137. Towle v. Holt, 14 Neb. 221, 15 N.W. 203. Howard v. Lamaster, 11 Neb. 582, 10 N.W. 497. Haller v. Blaco, 10 Neb. 36.

The defendant was aware of these defects, and in 1878 had a second tax deed executed, which is void for want of authority in the treasurer to execute such second deed. Reed v. Merriam, 15 Neb. 323, 18 N.W. 137. Thompson v. Merriam, 15 Neb. 498, 20 N.W. 24. The same objections apply to the deed made in 1874.

2. On the 12th of January, 1878, the defendant procured from the treasurer of said county a tax deed for the lands in question for the taxes due thereon for 1875. This deed is open to the same objection as that in Sullivan v. Merriam, ante, p. 157, the failure to describe the land conveyed and the want of a seal. To cure these defects, the defendant on the next day procured a deed in proper form, which not being issued on the presentation of the certificate of purchase was issued without authority of law, and the seal is a mere scroll and not the official seal. These deeds, therefore, are invalid.

The deed executed in March, 1882, for a sale of the land on the 19th day of November, 1879, for delinquent taxes fails to recite the place of sale. The revenue law of 1879 does not in any manner affect the collection of taxes prior to the time the revenue act of that year took effect. Hamilton County v. Bailey, 12 Neb. 56, 10 N.W. 539. In other words, the proceedings in regard to taxes previously levied will be the same as if the revenue law of 1879 had not been passed. The force of a tax deed and the validity of the sale for taxes are to be tested by the revenue law in force when the sale was made. McCann v. Merriam, 11 Neb 241, 9 N.W. 96. Covell v. Young, 11 Neb. 510. The tax deed, therefore, should be in the form prescribed by the act of 1869. As this deed fails to recite the necessary facts...