Boeck v. Merriam

• Decision Date: 18 March 1880
• Citation: 4 N.W. 962,10 Neb. 199
• Parties: HENRY BOECK, APPELLEE, v. S. N. MERRIAM, APPELLANT
• Court: Nebraska Supreme Court

4 N.W. 962

10 Neb. 199

HENRY BOECK, APPELLEE, v. S. N. MERRIAM, APPELLANT

Supreme Court of Nebraska

March 18, 1880

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

REVERSED AND REMANDED.

Sam M Chapman, for appellant.

T. M Marquett, for appellee.

OPINION

MAXWELL, CH. J.

This action was commenced in the district court of Cass county to remove a cloud from the title of certain real estate of the plaintiff, caused by a tax deed to the defendant for the same. There is no offer on the part of the plaintiff to pay the taxes justly due on such property, the claim for relief being "that said real estate was never assessed for the year 1870; that the assessor of said Plattsmouth precinct (being the precinct in which said lot 5 in block 35 was situated and liable for revenue purposes) never took and subscribed to the oath, as required by law for an assessor to take and subscribe, when he returned his assessment roll to the county clerk of Cass county; and that said pretended assessors' returns containing the lands and real estate of this plaintiff, to-wit: said lot 5, is absolutely void. And plaintiff further avers that there never was a valid or legal assessment for said year 1870 in Plattsmouth precinct as required by law; that a large majority of the property holders, and those who held by far the most valuable property in said city and precinct, were not required to make oath to the list of their property in said precinct; but that said property holders were allowed to make out a list of their property without making oath to the same."

It is also alleged that the "list purported to be made out and signed by the persons listing their property, and sworn to, the oath being administered by J. W. Johnson, deputy assessor." It is also alleged that the lists were not returned to the county clerk on or before the second Monday of April, 1870. The defendant in his answer denies that said property was not assessed as required by law in the year 1870; denies that the oath was not properly certified to by the officer administering the same; denies that said lots were not properly assessed and returned upon the assessment rolls of Plattsmouth precinct for the year 1870, but alleges that "said real estate was duly and regularly assessed for taxes that were just and equitable." The defendant prays for affirmative relief. On the trial of the cause a decree was rendered in favor of the plaintiff, declaring the tax deed void and awarding him costs of suit taxed at $ 41.64. The defendant appeals to this court.

The principal question to be determined in this case has already been decided at this term of the court in the case of Wood v. Helmer, ante p. 65. In that case, where the petition stated substantially the same facts as in the case at bar, but there was no offer to pay the amount of taxes justly due, it was held that there was no equity in the petition, and the case was dismissed.

In an action at law for the possession of the premises under a tax deed, these allegations, if true, would...