Darr v. Wisner
| Decision Date | 18 December 1901 |
| Docket Number | 10,681 |
| Parties | GEORGE B. DARR, APPELLEE, v. JOHN WISNER ET AL. APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dawson county Heard below before SULLIVAN, J. Affirmed in part.
Affirmed in part.
E. A Cook, for appellants.
Henry D. Rhea, contra.
Argued orally by Cook, for appellants.
DAY, C HASTINGS and KIRKPATRICK, CC. concur.
On April 15, 1898, George B. Darr commenced this suit in the district court of Dawson county against John Wisner and others to foreclose a lien claimed by virtue of a tax-sale certificate issued to him by the county treasurer of Dawson county. The trial resulted in a finding and decree in favor of the plaintiff, to review which the defendants have brought the case to this court by appeal. In substance, the petition alleged the purchase of the premises at public tax sale held November 7, 1892, from the county treasurer; the ownership of the property by the defendants; the assessment and levy of the taxes; that the same were due, delinquent and unpaid; the delivery of the tax-sale certificate to the plaintiff; and the subsequent payment by plaintiff of the taxes assessed and levied upon the property for the years 1892 and 1893. The answer admitted the ownership of the premises, and denied each and every other allegation of the petition. The only evidence to support the finding and decree of the court was the introduction of the original tax-sale certificate issued by the county treasurer to plaintiff, and the tax receipts for the payment of taxes for the years 1892 and 1893. These were received over the objection of the defendants. From the remarks of the court upon the trial, it is evident that the court received the evidence upon the theory that the original tax-sale certificate, as well as the tax receipts for the subsequent years, were sufficient proof, until contradicted of the facts put in issue by the answer. In this the court erred as to the tax receipts. The taxes for which the premises were sold were general taxes, and the introduction of the tax-sale certificate was presumptive evidence of the regularity of all prior proceedings leading up to the issuance of the certificate. Section 116 of chapter 77 of article 1 of the Compiled Statutes of 1901 provides as follows: "The purchaser of any tract of land sold by the county treasurer for taxes, will be entitled to a certificate in writing, describing the land so purchased, the sum paid and the time when the purchaser will be entitled to a deed, which certificate shall be signed by the treasurer, in his official capacity, and shall be presumptive evidence of the regularity of all prior proceedings," etc. In Leavitt v. Bell, 55 Neb. 57, 75 N.W. 524, it is said, quoting from syllabus: "Where a lien is sought to be enforced for general taxes, the presumption is that the statute in reference to the levy and assessment of the taxes and to the sale of the real estate for their non-payment has been complied with; and the burden of showing irregularities, or that the tax is void, is upon the party asserting such fact." The presentation of the tax receipts for the taxes for 1892 and 1893 did not raise any presumption of the regularity of the assessment or levy of taxes called for by the receipts. This being one of the issues raised by the pleadings, proof of all the steps showing a valid assessment and levy should have been made. This precise question has been before this court in Adams v. Osgood, 55 Neb. 766, 76 N.W. 446, wherein it is said: "A tax...
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