Griffith v. Smith
| Decision Date | 14 June 1889 |
| Citation | 42 N.W. 749,27 Neb. 47 |
| Parties | KATE A. GRIFFITH v. ALBERT C. SMITH |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before WAKELEY, J.
AFFIRMED.
Joseph H. Blair, for plaintiff in error, cited: Armstrong v Morrill, 14 Wall. 121, 145, 146; 3 Washburn on Real Property, 5th Ed., 148; Sedgwick & Wait on Trial of Title, 2d Ed., sec. 746; Wood on Limitations, p 577.
Lake & Hamilton, appearing by special leave of the court, cited: Am and Eng. Encyc. of Law, vol. 1, p. 273; Parsons v. Viets 9 S.W. Rep., 908.
This was an action quia timet in the district court of Douglas county by Albert C. Smith, plaintiff, against Kate A. Griffith, defendant.
The petition alleges that the plaintiff is the owner in possession, and for more than ten years prior to the bringing of this suit had been in the actual, open, adverse, peaceable, and continued possession, of lot six in block nineteen, in the city of Florence, in said county, and by reason thereof had acquired title thereto.
2. That the defendant claims some title, estate, or interest, in and to said lot, adverse to the plaintiff by reason of an instrument of record, purporting to convey the same to her; but whatever interest she may have had by reason of such conveyance in and to said lot, is subject and inferior to the title of plaintiff, and casts a cloud thereon which should be removed; with prayer that the title to and possession of said lot may be quieted in him.
The answer of the defendant sets up that her name is Katherine A. Griffith Boyd; that she is the identical person named as grantee in a certain deed of conveyance of lot six in block nineteen, in the city of Florence, in said county, from Henry J. Runnels, grantor, dated April 2, 1862, and recorded, and that she has been ever since that date the owner thereof.
She admits that since about March 28, 1874, the plaintiff and his immediate grantor, Mary Dunk, have been in the continued possession of said lot, but denies that such possession has been during all this time adverse to the defendant, for the reason that there has been an acknowledgment and recognition of defendant's ownership by the plaintiff and his immediate grantor within ten years, and that since such acknowledgment and recognition, ten years prior to the commencement of this suit had not elapsed.
3. That in or about the month of March, 1874, Mary Dunk, the immediate grantor of plaintiff, entered into possession of said lot, and was in possession of March 28, 1874, when the same was sold for taxes.
4. That from and after April 1, 1862, the date of Runnels's deed to defendant, and up to and including the year 1872 (except 1865), all of the taxes against said lot became delinquent and remained so on March 28, 1874.
5. That on March 28, 1874, the county treasurer of said county pretended to sell said lot to Samuel Scott, at private sale, for the taxes of 1872 alone, and for no other year or years, and issued to Scott a treasurer's certificate of sale; that Scott did not purchase said lot, nor was it sold for the then delinquent taxes of any year other than 1872, leaving the delinquent taxes for the years 1861, 1862, 1863, 1864, 1866, 1867, 1868, 1869, 1870 unpaid and omitted; nor did Scott then or at any time pay the taxes for any of the last-named years.
6. That afterward Scott assigned and delivered his certificate of sale to Mary Dunk, then in possession of the lot, who presented the certificate November 16, 1877, to the county treasurer, demanded and received a treasurer's deed therefor, without paying any of the delinquent taxes for the years last mentioned; that afterward Mary Dunk, without other title than that of said pretended deed, executed and delivered to the plaintiff a deed for said lot; and the plaintiff had full knowledge of the facts stated.
7. That the tax sale was illegal and void, because the lot was not sold for all the taxes then delinquent against it, and because none of the delinquent taxes, other than that of 1872, have ever been paid by Scott, Mary Dunk, or the plaintiff.
8. That the tax deed is void, because at the time of the sale to Scott the county treasurer had not filed in the county clerk's office any return of the sale of real property for taxes, at public sale, for the year in which the sale was made, nor for which such taxes were assessed and delinquent, as required by law, by reason of which he had no power or authority to sell said lot at private sale.
9. That the tax deed is void, because it does not show that the lot was sold "at the court house door," as required by law; nor does it show where the sale was made.
10. That the tax deed is void, because the county treasurer failed to attest the same with his official seal, and the seal of the treasurer was not affixed to it.
11. That the plaintiff's immediate grantor, Mary Dunk, by her purchase of the tax certificate from Scott, and by accepting the tax deed from the county treasurer on November 16, 1877, acknowledged, confessed, and recognized the title and ownership and the right of possession of defendant to said lot, or of some one other than herself, and that her possession, prior thereto, and up to that time, was inferior and subject to the ownership of defendant, or such other person.
12. That ten years had not elapsed between the date of the tax deed and the commencement of this suit; and denies that the plaintiff for more than ten years prior to the commencement had been in the actual, open, adverse, peaceable, and continued possession of the lot; and denies that the plaintiff and his immediate grantor have been in any possession except as shown herein.
13. That defendant has at all times been ready and willing to repay plaintiff all sums of money he has at any time paid for taxes assessed against said lot that are due and coming to him, with interest, and now tenders the same, and will perform any other order of the court herein, in reference thereto; with prayer that the pretended treasurer's deed, and the deed of Mary Dunk to the plaintiff, be declared void and canceled, and that the petition be dismissed, and for general relief, etc.
The plaintiff interposed a general demurrer to the answer, which was sustained; and the defendant not electing to amend or to further answer, there was a finding and final decree for the plaintiff. The cause is brought to this court on error by the defendant.
The point on which the plaintiff in error relies, and which is presented in an able and exhaustive brief, and was most forcibly argued at the bar, is that the plaintiff's grantor, Mary Dunk, in purchasing a tax certificate of sale of the lot from Samuel Scott, which he had bought from the county treasurer, and taking out a tax deed on such certificate, thereby abandoned her possession of the lot, and acknowledged the superiority of the title of the original and former owner.
The principal case relied...
To continue reading
Request your trial