Gue v. Jones

• Decision Date: 23 January 1889
• Citation: Gue v. Jones, 25 Neb. 634, 41 N. W. 555 (Neb. 1889)
• Parties: JOSEPH H. GUE, PLAINTIFF IN ERROR, v. HENRY O. JONES, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

41 N.W. 555

25 Neb. 634

JOSEPH H. GUE, PLAINTIFF IN ERROR, v. HENRY O. JONES, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 23, 1889

ERROR to the district court for Douglas county. Tried below before NEVILLE, J.

AFFIRMED.

Kennedy & Gilbert, for plaintiff in error, cited: Phillips v Dawley, 1 Neb. 320, 322. McKeighan v. Hopkins, 14 Neb. 368. Horbach v. Miller, 4 Neb. 46. 39 N.H 268, 277, 281. Ewing v. Burnet, 11 Peters, 44, 53. Green v. Liter, 8 Cranch, 229. Heiser v. Riehle 7 Watts, 35, 37. Boyer v. Benlow, 10 S. & R., 303. Miller v. Shaw, 7 S. & R., 134.

Estabrook & Irvine, for defendant in error, cited: Cadens v. Teasdale, 53 Vt. 469. Thompson v. Pioche, 44 Cal. 508. Pray v. Pierce, 7 Mass. 383. Fugate v. Pierce, 49 Mo. 447. Baldwin v. Merriam, 16 Neb. 200, and cases cited.

OPINION

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 south-west quarter of the north-west quarter of section twenty-one, township sixteen north, of range twelve east. 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 on 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:

I. 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.

II. 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.

III. 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 U.S. 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 the Statute of Nebraska, 1858, p. 183. The provision referred to as carried forward to Sec. 500, title 14, Rev. Stat., 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, confirmation of sale, and deed by the sheriff cannot be attacked collaterally. That such has been the proper holding 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 indisputable 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 Sec. 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, has hereunto set his hand and seal, on the day and year aforesaid. [SEAL.]"

The 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 decisions 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 ten 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, who was sworn, and testified: "I am acquainted with the north-west quarter section 21-16-12, and have known it ever since I have lived out there--since the spring of 1859 or 1860. I used to herd cattle all over there. I live right north of section 21. It was what we called a 'naked prairie.' No improvements on it when I went there. I was the first one that improved it, which was when I bought it of Mr. Smith, about four years ago. Nobody ever lived on it."

Q. When did you first lease it?

A. I never heard of anybody renting it or leasing it before I did. It must have been ten or fifteen years ago I first leased it. I leased it right along after that time.

Q. Had anybody leased it before?

A. I don't think anybody did. Perhaps Mr. Gue had it one year in betwixt. Think he rented for only one year. One year I gave Mr. Gilbert the privilege of cutting half of the hay with me. We cut about 120 acres of it. The other was too poor for grass, and the cattle were allowed to eat it. I stacked the hay right on the land and fed it out where I am living, and some I hauled to town.

Q. In grazing cattle there, how would you keep them on the land?

A. I would have my boys herd them.

Q. To what extent did you herd cattle on this land during these years?

A. In the spring they would do no damage and we would herd them all over the land. In the fall, "until about October," Gilbert and Gue herded there too.

On cross-examination the witness testified: "I should think we cut about 120 acres. There were some dry years, but I think it was mowed every year after we commenced buying it; that is, the bottom. Some years you can get upon the hill more than you can other years."

Q. The vacant land in that neighborhood was all pastured in some years?

A. Either cut or...