O'Donahue v. Hendrix

• Citation: 13 Neb. 257,13 N.W. 281
• Parties: O'DONAHUE v. HENDRIX.
• Decision Date: 26 September 1882
• Court: Supreme Court of Nebraska

13 Neb. 257

13 N.W. 281

O'DONAHUE

v.HENDRIX.

Supreme Court of Nebraska.

Filed September 26, 1882.

Error from Sarpy county.

Redick & Redick, for plaintiff.

Clarkson & Hunt, for defendant.

BY THE COURT.

This action was brought by the defendant in error against the plaintiff to have a certain tax deed, in which he was named as the grantee, declared valid; but if the court should find it to be invalid, then that the lien for the taxes paid be foreclosed and the premises sold. A decree was rendered in the court below declaring the tax deed invalid, but finding the tax sales to have been legally made, and awarding the holder of the deed a lien upon the real estate described in the petition for the amount of the purchase money, and 40 per cent. interest thereon, and directing a sale of the premises. The plaintiff brings the cause into this court by petition in error. There is no bill of exceptions, and the only question that can be considered is whether or not the petition will sustain the decree. It is alleged in the petition that in January, 1875, the county treasurer of Sarpy county sold to Milton Hendrix, at private tax sale, the lands in controversy, for the taxes thereon levied for the year 1873; that thereafter said Hendrix paid the taxes levied on said real estate for the years 1865 to 1872, inclusive, and 1874, and that on the fourth day of September, 1876, he purchased said premises for the taxes due thereon for 1875. The tax certificates were afterwards assigned to the defendant, who, on the fourteenth day of February, 1880, procured a treasurer's deed for the land. The sale being invalid, is the defendant entitled to 40 per cent. interest? We think not.

In the case of Tillotson v. Small, 13 N. W. REP. 201, and in State v. Helmer, 10 Neb. 25, [S. C. 4 N. W. REP. 375,] we held that a county treasurer had no authority to sell real estate for a portion of the taxes due thereon. The statute authorizes him to sell for all the taxes, penalty, interest, and costs due upon a tract of land. In State v. Helmer, supra, it is said: “It is doubtless the true intent and meaning of the law that lands or town lots can only be sold for taxes to those who offer to pay the amount of all taxes due on any parcel of land or town lot, or the smallest portion of the same.” We adhere to our decision in that case. The sale to the defendant was therefore unauthorized, and the defendant is entitled to only 12 per cent. interest.

The judgment of the district...