Gibson v. Dawes County

• Decision Date: 11 October 1935
• Docket Number: 29332.
• Parties: GIBSON v. DAWES COUNTY ET AL.
• Court: Nebraska Supreme Court

262 N.W. 671

129 Neb. 706

GIBSON v. DAWES COUNTY ET AL.

No. 29332.

Supreme Court of Nebraska.

October 11, 1935

Syllabus by the Court.

1. Liability of a county for a refund of the money paid by the purchaser of real estate at a county treasurer's sale for delinquent taxes, where the title fails, is statutory and does not exist at common law.

2. A petition for the refund of taxes paid by the purchaser of real estate at a county treasurer's sale for delinquent taxes is demurrable, if it does not state facts sufficient to show the statutory conditions which make the county liable.

3. A judicial decree, pleaded in a petition as part of a cause of action, prevails over plaintiff's allegations which the decree contradicts.

4. As between the holder of a tax sale certificate and a county from which a refund of taxes paid is sought, the statute of limitations begins to run from the time of the payment of the taxes and does not await a judicial determination that the taxes are illegal.

5. A claim or an action against a county by the holder of a tax sale certificate for a refund of taxes assessed against the real estate sold is barred by the statute of limitations, unless presented in some form to the county for allowance within five years from the date of the sale.

6. Where an action for a refund of the taxes involved in a county treasurer's tax sale certificate is barred by the statute of limitations, plaintiff, the holder of the certificate, is not entitled to recover back from the county taxes paid by him subsequent to the treasurer's sale.

Appeal from District Court, Dawes County; Meyer, Judge.

Claim by Jabe B. Gibson against Dawes County. From a judgment of dismissal after general demurrer was sustained, on appeal from the Board of County Commissioners which disallowed the claim, plaintiff appeals.

Affirmed.

R. J Shurtleff, of Norfolk, and G. T. H. Babcock, of Chadron, for appellant.

R. R Wellington, of Crawford, for appellees.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

ROSE Justice.

Plaintiff presented to the county commissioners of Dawes county a claim against the county for a refund of $304.61 paid to the county treasurer for taxes assessed against 320 acres of land. For delinquent taxes levied for the years 1920 and 1921 the county treasurer sold the land to W. C. Foster November 6, 1922, and issued to him a tax sale certificate. The purchaser sold the certificate to Jabe B. Gibson, plaintiff, August 25, 1925. The purchase price at the treasurer's sale and subsequent taxes paid by the holders of the tax sale certificate for the years 1922 to 1926, both inclusive, were items inserted in the claim of plaintiff. The claim was filed with the county clerk December 22, 1930, and disallowed by the county commissioners February 7, 1934. From the disallowance plaintiff appealed to the district court and to his petition filed therein the county of Dawes, defendant, interposed a general demurrer which was sustained. Plaintiff declined to plead further and stood on his petition. From a dismissal of the action, plaintiff appealed to the supreme court.

The question presented by the appeal is the sufficiency of the petition to state facts constituting a cause of action against Dawes county, defendant, for plaintiff's claim.

The liability of a county for a refund of taxes paid by the purchaser of real estate at a county treasurer's sale for delinquent taxes, where the title fails, is statutory and does not exist at common law. Speidel v. Scotts Bluff County, 125 Neb. 431, 250 N.W. 555.A petition for such a refund is demurrable, if it does not state facts sufficient to show the statutory conditions which make the county liable. Monteith v. Alpha High School District, 125 Neb. 665, 251 N.W. 661.There are two sections of statute imposing upon a county the duty to hold the purchaser of real estate at a tax sale harmless by refunding the amount of the payment made by him to the county treasurer, where the title fails. The statutory provisions follow:

" When by mistake or wrongful act of the treasurer or other officer land has been sold on which no tax was due at the time or whenever land is sold in consequence of error in describing such land in the tax receipt, the county is to hold the purchaser harmless by paying him the amount of principal, interest and costs to which he would have been entitled had the land been rightfully sold, and the treasurer or other officer shall be liable to the county therefor upon his official bond; or the purchaser or his assignee may recover directly of the treasurer or other officer in an action on his official bond." Comp. St. 1929, § 77-2030.

" Whenever, for any reason, real estate has been sold or shall hereafter be sold for the payment of any tax or special assessment levied by any county, municipality, drainage district or other political subdivision of the state, and it shall thereafter be determined by a court of competent jurisdiction that said sale was void, it shall be the duty of said county, municipality, drainage district, or other political subdivision of the state which levied the tax or special assessment to hold said purchaser harmless by paying him the amount of principal paid by him at the

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