D'Gette v. Sheldon

• Decision Date: 12 November 1889
• Parties: D'GETTE v. SHELDON.
• Court: Nebraska Supreme Court

27 Neb. 829

44 N.W. 30

D'GETTE

v.SHELDON.

Supreme Court of Nebraska.

Nov. 12, 1889.

Syllabus by the Court.

1. Under the revenue law of 1879 an action to foreclose tax-liens must be brought within five years after the expiration of the time to redeem. Helphrey v. Redick, 21 Neb. 80, 31 N. W. Rep. 256;Parker v. Matheson, 21 Neb. 546, 32 N. W. Rep. 598.

2. Under the aforesaid law a person who has been in the open, exclusive, notorious, adverse possession of real estate for 10 years thereby acquires an absolute title free from the liens of any taxes which existed on said property prior to the commencement of said period of 10 years.

3. The provision of the statute declaring taxes to be a “perpetual lien” upon real estate must be construed with reference to those provisions providing for redemption of the land sold within two years from the date of sale, and for a tax-deed if desired, and the time in which an action to foreclose the lien may be brought. It was not intended to continue a tax-lien in force after the remedies to enforce it had ceased.

Appeal from district court, Otoe county; CHAPMAN, Judge.C. W. Seymour, for appellant.

Frank T. Ransom, John C. Watson, and George D. Schofield, for appellee.

MAXWELL, J.

This is an action to foreclose a tax-lien. On the trial of the cause the court found the issues in favor of the defendant, and dismissed the action. The plaintiff alleges in his petition that “the defendant, Armsdell Sheldon, is the owner of certain real estate, described as follows: The north half of the north-east quarter of section one, township 9, range 12, lying and being in Otoe county, state of Nebraska. That the said real estate was subject to taxation for the years 1861, 1862, 1863, 1864, 1865, 1866, 1867, and was duly and legally assessed and valued for taxation for the said years, and for each of said years. That the taxes for each of the said years were duly levied thereon. They were not paid for each or for any of the said years 1861, 1862, 1863, 1864, 1865, 1866, 1867, by the owner and occupant of the said real estate, to whom they were assessed and taxed, but became delinquent. That they were unpaid after delinquency until the date of the sale of the said real estate, for the delinquent taxes for the said years, and each of said years. That the said real estate was duly and legally advertised for sale for the non-payment of the delinquent taxes thereon for the said years, at the time and in the manner required by law, and that the said real estate was duly offered for sale for the taxes for the said years, and for each of the said years, and was unsold for the want of bidders at public sale. That due return was made to the office of the county clerk of Otoe county, state of Nebraska, by the said treasurer of the said county of the lands and lots sold by him at public sale, within the time required by law. That the said real estate was sold at public sale at the county treasurer's office in the said Otoe county, state of Nebraska, for the delinquent taxes thereon for the said years 1861, 1862, 1863, 1864, 1865, 1866, 1867, to Dwight J. McCann, on the 7th day of September, A. D. 1868, who received a certificate of tax-sale therefor for each of the said years of the said date, and paid therefor, for the year 1861, $2.15; for the year 1862, $5.80; for the year 1863, $5.19; for the year 1864, $5.68; for the year 1865, $12.70; for the year 1866, $7.71; for the year 1867, $5.88; certificate stamp and com., $2.85; total, $47.91. Said certificate of tax-sale numbered ______. That on the ______ day of ______, A. D. 1874, the said Dwight J. McCann, for a valuable consideration, did sell and assign all his right, title, and interest in and to the said tax-certificate to this plaintiff, who is now the legal owner and holder of the same. This plaintiff says that he has not produced the said certificate or surrendered the same to the said county treasurer of Otoe county, state of Nebraska, and demanded a tax-deed for the said real estate for the said delinquent taxes, for the reason that the said tax-deed would be invalid, and fail to convey to this plaintiff, the legal title to the said premises. That, though he is not entitled to the legal title of the said premises, he is yet entitled to a perpetual lien upon the said premises for the taxes as aforesaid duly and legally assessed and levied on the said real estate for the said years 1861, 1862, 1863, 1864, 1865, 1866, 1867, and paid by him thereon for each of the said years, with interest on each of the said sums paid by him as and at the time hereinbefore set forth, at the rate of forty per cent. per annum, for the period of two years from each of the said dates at which the same were paid; at the rate of 12 per cent. per annum thereafter; and to the finding of this court of...