Brown v. Glebe

• Decision Date: 14 January 1983
• Docket Number: No. 81-735,81-735
• Citation: 213 Neb. 318,328 N.W.2d 786
• Parties: Alice BROWN, Appellant, v. Otis GLEBE, Appellee.
• Court: Nebraska Supreme Court

Page 786

328 N.W.2d 786

213 Neb. 318

Alice BROWN, Appellant, v. Otis GLEBE, Appellee.

No. 81-735.

Supreme Court of Nebraska.

Jan. 14, 1983.

Syllabus by the Court.

1. Foreclosure: Presumptions. Sheriff's deeds are specially covered by Neb. Rev.Stat. §§ 77-1901 et seq. (Reissue 1981) and, unlike the provisions for tax certificates, there is no section establishing a presumption regarding service, as is true in the case of a treasurer's deed.

2. Foreclosure: Liens. A decree of foreclosure of a tax lien is of no effect as against the persons who were, at the time of the foreclosure, in actual possession and who were not made parties defendant in the action and had no notice or knowledge of the suit.

Walter M. Calinger of Wall, Wintroub & Weiner, Omaha, for appellant.

James P. Miller, Omaha, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, McCOWN, CLINTON, WHITE, and HASTINGS, JJ.

KRIVOSHA, Chief Justice.

The appellant, Alice Brown, filed this suit on November 6, 1980, seeking to remove a cloud on the title to certain property allegedly owned by Brown in Omaha, Douglas County, Nebraska. The appellee, Otis Glebe, had acquired title to the Brown property in October of 1971 after securing a sheriff's deed to the property and holding it for 2 years prior to confirmation as provided by the provisions of Neb.Rev.Stat. §§ 77-1903 and 77-1913 (Reissue 1981). Following trial, the trial court quieted title to the property in Glebe under certain conditions. For reasons set out more particularly in this opinion, we believe that, on the basis of the record before us, the decision of the trial court was in error and its judgment must be reversed and the cause remanded.

The record discloses that in 1955 Brown acquired title to certain real estate in Omaha, Douglas County, Nebraska, described as Lot 5, Block 42, Kountze Place, an Addition to the City of Omaha, Douglas County, Nebraska. Brown acquired title to the property by warranty deed from the previous owners and has been in continuous physical possession of the property since that date.

The record further discloses that Brown failed to pay some, if not all, of the real estate taxes on the property between the date of its purchase in 1955 and 1970. The county attorney thereafter proceeded to foreclose on the property pursuant to the provisions of Neb.Rev.Stat. § 77-1918 (Reissue 1981). Glebe purchased the property at the tax foreclosure sale for $310. As already noted, at the time the tax foreclosure proceedings were brought in 1971, Brown was in actual possession of the property, and according to her testimony was never served with notice of the foreclosure action. For reasons which are not at all clear, Glebe refused to introduce into evidence the sheriff's return filed in the foreclosure action showing service on Brown, if in fact such service was made. Brown continued to live on the property after the sheriff's sale and made monthly rental payments to Glebe under what she described as "protest." Glebe, having apparently taken a lesson from Brown, likewise failed to pay any taxes on the subject property, and on November 7, 1977, Brown obtained a county treasurer's certificate of tax sale after paying $965.45 in satisfaction of delinquent city and county taxes for the years 1973 through 1977. This was pursuant to the provisions of Neb.Rev.Stat. § 77-1809 (Reissue 1981).

In 1980 Brown filed this suit to quiet title to the property and prayed for equitable relief. One ground for relief was that the sheriff's deed issued to Glebe should be set aside due to the fact that she was not served and therefore his deed was void, or, in the alternative, that title be quieted in her favor by foreclosing her tax certificate pursuant to the provisions of Neb.Rev.Stat. § 77-1831 (Reissue 1981).

Following trial, the District Court held that Glebe was the title owner of the property by virtue of the sheriff's deed dated November 1, 1973. It also found that the tax certificate purchased by Brown was merely a lien upon the property and ordered that the property be sold unless Glebe pay to Brown the amount of the lien within 20 days after entry of the decree. Glebe in fact paid the required sum into the court registry within the 20 days and Brown perfected this appeal.

Since this is an equitable action, difficult as that may be to glean from the facts of this case, it is the duty of this court to try the issues de novo on the record and reach independent conclusions without being influenced by the findings of the trial court. See, Sturm v. Mau, 209 Neb. 865, 312 N.W.2d 272 (1981); Bartlett v. Kloepping, 195 Neb. 755, 240 N.W.2d 592 (1976). The first issue which must be addressed is whether the record shows that Brown was served in the foreclosure action. The only evidence in this record concerning service on Brown is Brown's own uncontradicted and unimpeached testimony that she never received service of process with regard to the foreclosure. Glebe argues that there is a presumption of validity pursuant to the provisions of Neb.Rev.Stat. § 77-1842 (Reissue 1981), and therefore Brown must overcome the presumption by evidence greater than her own unsupported statements. Unfortunately, Glebe is simply in error in this regard. It is true that § 77-1842 establishes various presumptions of validity. The difficulty, however, is that the provisions of § 77-1842 have no...