City Safe Deposit & Agency Co. v. City of Omaha

• Decision Date: 22 June 1907
• Docket Number: No. 14,889.,14,889.
• Citation: 79 Neb. 446,112 N.W. 598
• Parties: CITY SAFE DEPOSIT & AGENCY CO. ET AL. v. CITY OF OMAHA.
• Court: Nebraska Supreme Court

79 Neb. 446

112 N.W. 598

CITY SAFE DEPOSIT & AGENCY CO. ET AL.

v.CITY OF OMAHA.

No. 14,889.

Supreme Court of Nebraska.

June 22, 1907.

Syllabus by the Court.

A purchaser of property at judicial sale is estopped to deny the validity of liens deducted from the appraisement, and the same rule applies to a city taking title by eminent domain, where it is provided in the judgment of appraisal that there shall be no deductions from the award “for taxes or special assessments, the said land being taken by the city subject to all special and general taxes against the property.”

The lien for taxes is not satisfied by a statutory sale of the property for the same, nor by the payment of prior or subsequent levies by the purchaser. Such sale only operates to transfer the lien to the purchaser.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Douglas County; Sutton, Judge.

Action by the City Safe Deposit & Agency Company and others against the city of Omaha. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.E. W. Simeral and J. W. West, for appellants.

H. E. Burnam, I. J. Dunn, and John A. Rine, for appellee.

CALKINS, C.

In January, 1896, one Phœbe Linton, being the owner of certain lots in the city of Omaha, executed a mortgage thereon to one John Morris. In May, 1898, Morris began an action to foreclose this mortgage. The defendant answered, attacking the validity of the mortgage, but the action resulted in a decree in favor of Morris, which was entered April 19, 1904. The taxes on the mortgaged premises being unpaid, Morris caused the same to be purchased at tax sale in December, 1898, by the plaintiff, in whose name the certificate of sale was made and subsequent taxes paid. In 1899 the city of Omaha condemned the mortgaged property for boulevard purposes, appraising their value at $1,900. From this appraisement the owner of the property and the mortgagee appealed to the district court, which on March 21, 1902, rendered a judgment in which it was provided that “the award of $1,900 appealed from shall stand, and no deduction shall be made from the award for the land appropriated for taxes or special assessments; the said land being taken by said city subject to all special and general taxes against said property.” This action was brought against the city to recover the taxes and special assessments against said property, and resulted in a decree for the defendant. The plaintiffs appeal.

The contention of the defendant is that, while the mortgagee had a right to pay the taxes on the land in question or to redeem the same from tax sale, the amounts of money expended by him for such purpose did not constitute a separate cause of action either against the mortgagor or the land, but became and were a part of the mortgage debt, and could only be enforced as such. The plaintiff claims that the rule so invoked is not applicable to the facts in this case; and, further, that the city, having taken the land subject to the taxes and assessments, and having thereby secured a corresponding reduction in the amount of the appraisement, is estopped to say that Morris should have enforced the lien for taxes in the foreclosure suit. There has been an extended argument on the first proposition; but, in view of the conclusion at which we have arrived upon the question of estoppel, it will not be necessary for us to determine the question so presented in this case. At the time of the rendition of the judgment of the district court upon...