Gue v. Jones

• Decision Date: 23 January 1889
• Citation: Gue v. Jones, 25 Neb. 634, 41 N. W. 555 (Neb. 1889)
• Parties: GUE v. JONES.
• Court: Nebraska Supreme Court

25 Neb. 634

41 N.W. 555

GUE

v.JONES.

Supreme Court of Nebraska.

Jan. 23, 1889.

Syllabus by the Court.

1. S. brought an action in a district court of the late territory of Nebraska against P., who was a non resident. Obtained an order of attachment, which was levied upon a city lot. Service was had upon P. by publication only. No appearance was made by P. Judgment by default was regularly entered. Order issued for the sale of the attached lot. Sale made and confirmed. There being an execution issued for a supposed deficiency, certain lands situated in the same county were levied on and sold by the sheriff, and bought in by S. In an action of ejectment by the grantee of P. against the grantee of S. for the said land, held, that the same was a direct proceeding against the colorable levy, sale, and deed of said land to S., which are void.

2. A tax deed under the act of 1861, not executed under the official seal of the county treasurer, held void.

3. Evidence introduced for the purpose of proving the adverse possession of the land in question for the period of 10 years before the commencement of the suit examined, and held to sustain the verdict and judgment.

Error to district court, Douglas county; NEVILLE, Judge.

Action of ejectment by Henry O. Jones against Joseph H. Gue. From a judgment for plaintiff defendant brings error.Kennedy & Gilbert, for plaintiff in error.

Estabrook & Irvine, for defendant in error.

COBB, J.

On the 9th day of January, 1882, Henry O. Jones, plaintiff in the court below, commenced an action in ejectment in the district court of Douglas county against Joseph H. Gue, defendant therein, for the S. W. 1/4 of the N. W. 1/4 of section 21, township 16 N., of range 12 E. The defendant filed his answer, admitting possession of the premises, and denying all other allegations of the petition. On the 10th day of June, 1885, the cause was tried to the court, a jury being waived. The finding and judgment were for the plaintiff. The defendant claiming a second trial under the provisions of the statute, the finding and judgment were set aside for a new trial. Thereupon the cause came for a second trial, a jury being waived. The trial was had to the court, with the finding and judgment for the plaintiff. The defendant filed a motion to vacate the judgment, and application for a new trial, for cause, which being overruled, the defendant brings the case to this court on the following assignments in error: (1) The court erred in its findings that the plaintiff had a legal estate in, and was entitled to the immediate possession of, said land, and that the defendant unlawfully keeps him out of the same. (2) The court erred in rendering a judgment in favor of the plaintiff, whereas, upon the facts and the law, judgment should have been rendered in favor of the defendant. (3) The findings and judgment are contrary to law, and are not sustained by the evidence.

The first assignment of error is addressed to the defendant's paper title. The plaintiff's title consists of two patents of the land from the president of the United States to Allen F. Peck,--the first dated April 2, and the other May 1, 1860; and a deed from Peck and his wife to Henry O. Jones, duly executed August 1, 1871, and duly recorded September 8, 1871. The paper title of the defendant is a sheriff's deed of the sheriff of Douglas county, and a tax deed of the treasurer of said county to one Francis Smith, with mesne conveyance from Smith to the defendant. It appears from the record that in 1860 said Smith commenced an action against said Peck, then the owner of the land in question, and owner of a city lot in Omaha, and caused an attachment to be issued and levied on the city lot. There was no personal service of summons in this action, Peck being a non-resident of the territory. Judgment was rendered for the plaintiff for $256 and costs. The attached lot was advertised and sold. The sale was confirmed by the court, there being a balance unsatisfied after applying the proceeds of the sale of said lot. Upon the confirmation of the sale it was ordered on the 9th day of May, 1862, “that an execution for the balance due on said judgment issue.” At a subsequent term of the court, commencing October 3, 1862, the execution, doubtless issued in pursuance of said order, was returned into court. The record does not disclose what was returned, but that the court adjudged that the return of the officer and his levy and sale of said property on said execution be, and the same was, in all respects, ratified and confirmed, and the sheriff was ordered to execute and deliver to the purchaser of said property at the sale a good and sufficient conveyance therefor. The record exhibits a copy of a sheriff's deed in pursuance of the last above order of the court conveying the land in question to Francis Smith for the consideration of $200. The plaintiff in error, in the brief of counsel, cites St. Neb. 1858, p. 183. The provision referred to as carried forward to section 500, tit. 14, Rev. St. 1866, is as follows: “The deed shall be sufficient evidence of the legality of such sale and the proceedings therein until the contrary be proved,” etc. Counsel also cite several Nebraska cases to the point that the order for execution, in confirmation of sale, and deed of the sheriff cannot be attacked collaterally. That such has been the proper ruling of this court in numerous cases is not denied; but we understand in this case that the attack is direct, and in no sense collateral, and that it is made in the most direct manner open to the plaintiff. The defendant's grantor, Francis Smith, having a demand against Allen F. Peck, a non-resident, brought his action against him in the proper court for the purpose of subjecting his city lot to the payment of his debt. He pursued the proper remedy, and accomplished a lawful purpose. Thereupon the jurisdiction of the court absolutely terminated in respect to the other property of Peck; or, more technically, its jurisdiction over the property of Peck, having an existence only in regard to the city lot in question, could only be extended to other property by a new suit, affidavit, and notice by publication. But it is contended that, though the court proceeded without jurisdiction, and seized the land of Peck in fact, that the title obtained under such void proceedings is good except as against a direct proceeding of recovery. I do not think that the exigencies of this case require further inquiry into this proposition; for, as above stated, I regard the plaintiff's action of ejectment as a direct attack upon the title thus obtained, and that, being thus attacked, it cannot stand.

At the trial the defendant produced a tax deed covering the premises in question issued to Smith by the treasurer of Douglas county, August 4, 1865, for the taxes of 1862. This deed was objected to by the plaintiff on several grounds; among others, that it was not executed under the official seal of the treasurer. The act of 1861, under which the deed was executed, provides, at section 60, “that such conveyance shall be executed by the county treasurer, under his hand and seal.” Then follows the statutory form of such deed, concluding with the words of attestation: “In testimony whereof the said _______, treasurer of said county of _______, has hereunto set his hand and seal on the day and year aforesaid. ____________. [Seal.]” This statute has been substantially carried forward throughout all the changes of the revenue law to the present day. Under its provisions it has been held by this court, in cases too numerous for citation, of which several are cited by counsel for defendant in error, that a tax deed not executed by the treasurer under his seal of office is void. It will not be expected that this line of decision can be departed from now. The deed introduced in the case at bar, if legal and proper in all other respects, as to which we pass no opinion, is open to the fatal objection that it does not purport to have been executed by the county treasurer under his seal of office. The defendant in the court below also claims title to the land by virtue of 10 years' adverse possession.

From the abstract of the record furnished by counsel for the plaintiff in error all of the evidence is presented upon which the claim is founded. The defendant also introduced Charles Noyce...