Grant v. Bartholomew

• Citation: 78 N.W. 314,57 Neb. 673
• Parties: GRANT v. BARTHOLOMEW.
• Decision Date: 09 February 1899
• Court: Nebraska Supreme Court

57 Neb. 673

78 N.W. 314

GRANT

v.BARTHOLOMEW.

Supreme Court of Nebraska.

Feb. 9, 1899.

Syllabus by the Court.

1. Though the evidence disproves the material allegations of new matter in an answer, such evidence will be disregarded, unless such new matter is denied by a reply. Code Civ. Proc. § 134.

2. The listing and assessment of real estate for taxation in the name of a person then deceased do not invalidate such assessment, or the taxes levied thereon.

3. A board of county commissioners, sitting as a board of equalization, without notice to the landowner, and without a complaint that his real estate was assessed too low, raised the value placed thereon by the assessor. Held, that the board was without jurisdiction, and its action a nullity.

4. Such action of the board of equalization did not vitiate the assessment made of the property by the assessor.

5. Only so much of the tax as arose out of the difference between the valuation placed upon the property by the assessor and the value attempted to be placed thereon by the board of equalization is illegal.

6. To invest a county treasurer with jurisdiction to seize personal property for the satisfaction or enforcement of a tax lien thereon, the warrant provided by section 83 of the revenue law must be attached to the tax list. Reynolds v. Fisher, 61 N. W. 695, 43 Neb. 172, followed.

7. Under our revenue law a real-estate tax is not the personal obligation of the real-estate owner. The real estate, and not the owner thereof, is liable for its payment.

8. The warrant, provided by section 83 of the revenue law to be attached to the tax list, is not essential to invest a treasurer with jurisdiction to sell real estate for the nonpayment of taxes which are delinquent, and a lien thereon.

9. The county treasurer's authority and jurisdiction to make such a sale of real estate are derived from the express and mandatory provisions of sections 109 and 113 of the revenue law (Comp. St. c. 77, art. 1).

10. Assuming that the warrant provided by section 83 of the revenue law must be attached to the tax list, to invest the county treasurer with jurisdiction to make a sale of real estate for delinquent taxes thereon, then a sale made by the county treasurer where such warrant was not so attached to the tax list would be void.

11. But though such a sale would be void as a tax sale, within the meaning of the revenue law, and such sale and subsequent statutory proceedings under it could never have the effect of devesting the landowner's title to the real estate, and vesting it in the purchaser at the sale, still the rule in this jurisdiction is that such a void sale is effective as an assignment and transfer of the liens of the public to the tax purchaser, and invests him with all liens and rights which the public had against said real estate by reason of the taxes assessed and delinquent thereon.

12. This rule is not the creature of this court, but it is founded upon the revenue legislation of the state.

13. The theory of our revenue law is that a purchaser of real estate at a sale made thereof for delinquent taxes shall not lose his money. If no tax was due on the real estate at the time of the sale, then the county is to reimburse the purchaser the money paid. If the land was liable to taxation, and there was a legal tax due and delinquent against the land, then, if the tax purchaser failed to acquire a good title to the real estate because of any violation of the revenue law, or the failure of public officers to comply with its provisions, the law declares that the sale shall nevertheless be effective as an assignment of the public's rights and liens against the real estate to the attempted tax purchaser thereat.

14. The various counties in this state are trustees of the state, and the various cities, villages, and school districts within their borders, for the collection of the public revenue.

15. A county is a person, within the meaning of section 1, art. 5, of the revenue law of 1879 (Comp. St. 1897, c. 77, art. 5, § 1).

16. Under the revenue laws of this state, a county may enforce its lien for taxes against real estate by an ordinary foreclosure suit in a court of equity after the taxes on such property have become delinquent, and after the time the property becomes liable for sale for the nonpayment of such taxes.

17. It seems that the right of a county to maintain a suit in equity to foreclose the public's lien against real estate for the nonpayment of taxes thereon exists independently of statute.

18. A county treasurer has no authority to sell real estate for the delinquent taxes of one year, without including in such sale all taxes delinquent against such real estate for all previous years.

19. One who purchases real estate at a void sale attempted to be made thereof by the county treasurer for the nonpayment of delinquent taxes thereon is entitled to the same rate of interest upon the taxes paid by him that such taxes were drawing at the time he paid them.

Appeal from district court, Douglas county; Duffie, Judge.

Suit by J. Ralston Grant against William O. Bartholomew. From a judgment dismissing plaintiff's bill, he appeals. Reversed.

Harrison, C. J., and Ryan and Irvine, CC., dissenting.

Saunders & Macfarland, for appellant.

D. L. Thomas and Wm. O. Bartholomew, for appellee.

RAGAN, C.

J. Ralston Grant brought this suit to the district court of Douglas county against William O. Bartholomew to foreclose a lien upon lot 28 in Horbach's First addition to the city of Omaha, based on a tax-sale certificate issued to Grant's assignor by the county treasurer of Douglas county on the 11th day of June, 1890, pursuant to a private sale then and there made by said treasurer of said real estate for the delinquent taxes thereon for the year 1888, said taxes and interest then and there amounting to the sum of $29.65. Grant, in his petition, also alleged that on the said 11th day of June, 1890, and at various dates since that time, he had paid and discharged taxes levied and assessed upon said lot, and which were liens thereon, for years both prior and subsequent to the year 1888. The prayer of Grant's petition was for an accounting of the amount due him on his tax lien, and for the taxes paid by him to protect such lien, and for a decree foreclosing it. As a defense to the action, Bartholomew, in his answer, interposed, in effect, first a general denial, and then set up, as separate and distinct defenses, certain new matter, which will be hereinafter noticed. There was no reply filed to this answer. The district court entered a judgment dismissing Grant's action, and he has appealed.

1. The evidence discloses that the real estate in controversy was sold to Grant's assignor by the county treasurer of Douglas county on the 11th day of June, 1890, at a private tax sale, for the delinquent taxes thereon for the year 1888; that these taxes, or part of them, at least, were legally levied upon this property, and were unpaid and delinquent, and a lien upon the property; that Grant at that time, and at various times subsequent thereto, paid and discharged other taxes which had been legally levied upon such property, and were due and delinquent. The decree of the district court cannot, therefore, be sustained, unless it rests upon the allegations of new matter pleaded by Bartholomew in his answer as defenses to the action, and which new matter was not denied by a reply; and we now proceed to an examination of the new matter set up in the answer as a defense to this action, and, in obedience to section 134 of the Code of Civil Procedure, shall treat these averments of new matter as true.

2. As a defense, Bartholomew alleged that the real estate was assessed in the year 1888 in the name of Abner French; that he died in 1885, and therefore the assessment upon which the tax sale was based was void. In support of this contention, Smith v. Davis, 30 Cal. 537, and Cruger v. Dougherty, 43 N. Y. 107, are cited. In those cases certain assessments were held void because the property was assessed in the name of a person then deceased, but the courts reached the conclusion they did in those cases because of the peculiar language of the revenue laws construed. The cases are not authority here for the contention in support of which they are cited, as our revenue law provides that no assessment of real property shall be considered as illegal by reason of the same not being listed or assessed in the name of the owner or owners thereof, and no sale of real property for taxes shall be considered invalid on account of the same having been charged (assessed) in any other name than that of the rightful owner. Comp. St. 1897, c. 77, art. 1, §§ 43, 136; Lynam v. Anderson, 9 Neb. 367, 2 N. W. 732. The theory of our revenue law is that real-estate taxes are a charge against real estate only; that real-estate taxes are not the personal debt or obligation of the real-estate owner.

3. Another defense was that the property in controversy in 1884 was valued by the assessing officer at $350, and that subsequently the board of county commissioners of Douglas county, sitting as a board of equalization, without notice to Bartholomew, raised this assessment to $385. The argument is that all the 1884 taxes levied against this property were void, and that Grant, by paying the same, acquired no lien upon the property. There can be no doubt but that the action of the board of equalization in raising the valuation placed upon this property by the assessor was void. To invest the board of equalization with jurisdiction to raise the valuation placed upon this property by the assessor, it was essential that some one should complain to the board that Bartholomew's property was assessed too low, and that he should be notified of such complaint, if a resident of Douglas county, which he was. State v. Dodge Co., 20 Neb. 595, 31 N. W. 117;Dixon Co. v. Halstead, 23 Neb. 697, 37 N. W. 621;State v. Edwards, 31 Neb....