Haller v. Blaco

• Decision Date: 23 January 1880
• Citation: 4 N.W. 362,10 Neb. 36
• Parties: WILLIAM D. HALLER, PLAINTIFF IN ERROR, v. RICHARD BLACO, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

4 N.W. 362

10 Neb. 36

WILLIAM D. HALLER, PLAINTIFF IN ERROR, v. RICHARD BLACO, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 23, 1880

THIS was an action of ejectment brought by Haller against Blaco in the district court of Washington county.The plaintiff relied on a treasurer's tax deed executed under the provisions of the revenue law of 1869[Gen. Stat., 918, 923], to support his claim of title to the land in dispute.This was excluded under objection by the defendant, and judgment entered in his favor before SAVAGE, J.

AFFIRMED.

Ballard & Walton and Carrigan & Osborn, for plaintiff in error, cited McReady v. Sexton,29 Iowa 856.Turner v Yeoman,14 Ohio 217.Stanberry v. Sillon,13 Ohio St. 571.

E Estabrook, for defendant in error, cited Hilliard on Taxation, 544-5.Burroughs on Taxation, 324-335. 3 Washburn on Real Property, 208.Blackwell on Tax Titles, 368-9.Cooley on Taxation, 337.Chandler v. Spear,22 Vt. 388.Kinney v. Beverly, 2 Henning & Munford, 531.Smith v. Hillman, 1 Scammon, 323.Davison v Gill, 1 East., 64.Boardman v. Bourne,20 Iowa 134.Lain v. Cook, 15 Wis. 446.

LAKE, J. COBB, J., concurs.MAXWELL, CH. J., dissenting.

OPINION

LAKE, J.

This is a petition in error from Washington county.The only errors complained of by the plaintiff's counsel in their brief are the exclusion, first, of the tax deed, and secondly, of the treasurer's certificate of tax sale, offered in evidence to prove title to the land in controversy.

As to the certificate, the record before us fails to show any ruling of the court on the objection interposed to it by the defendant's counsel; nor is it shown whether the instrument was actually received in evidence or not.For these reasons no question concerning this certificate is presented for our decision.Where the record is silent as to the ruling of the court below on an objection to testimony offered, no foundation is laid for a review of that ruling here, whatever it may have been.In such case it is impossible to say that an error was committed, while the presumption is there was not.

Nor do we perceive any error in the ruling of the district judge upon the objection to the deed.The statute prescribes a particular form for a tax deed, which "shall be, as far as practicable," followed by the treasurer in making the conveyance.It will not be questioned that in order to deprive the owner of land of his title thereto under tax proceedings it must be shown that every material pre-requisite of the statute has been strictly complied with.In this state the legislature have seen fit to require that most of the essential steps to a valid tax sale of land shall be recited in the treasurer's deed, which is made prima facie evidence that they were taken.Among these essential steps that must be recited in the deed is the place of sale, which must have been either "at the court house or place of holding courts in his county, or at the treasurer's office."The language of the statutory form of deed being "at the door of the courthouse," but as this is to be followed only so "far as practicable," and inasmuch as the sale might have been made elsewhere, the fact on this point concerning it must be stated.And this statement of the place of sale is not matter of form merely, it is of the substance of a valid deed, and the courts are no more at liberty to disregard it than they are any one, or all even, of the numerous other recitals which the statute requires.Lain v. Cook, 15 Wis. 446.Harrington v. City of Worcester, 88 Mass. 576, 6 Allen 576.Smith et als. v.Hileman, 2 Ill. 323, 1 Scam. 323.The deed was rightly excluded, and the judgment of the court below must be affirmed.

AFFIRMED.

COBB, J., concurs.

DISSENT BY:MAXWELL

MAXWELL CH. J., dissenting.

To that portion of the opinion of the majority of the court holding that the deed in question is void upon its face I cannot give my assent.

Section 56 of the revenue law, approved February 15, 1869, provides that "on the first Monday of September in each year, between the hours of 9 A. Mand 4 P. M., the treasurer is directed to offer at public sale at the court-house, or place of holding courts in his county, or at the treasurer's office, where by law the taxes are made payable, all lands upon which the taxes of the previous year still remain unpaid," etc.Gen. Stat., 918.

Section 63 provides that "after the tax sale shall have closed, and after the treasurer has made his return thereof to the county clerk, as provided in section 59, * * * if any real estate remain unsold for want of bidders therefor, the county treasurer is authorized and required to sell the same at private sale at his office," etc.

Section 67 provides for the execution of a deed in case of the failure to redeem the land.

Section 68 provides that "such conveyance shall be executed by the county treasurer under his hand, and the execution thereof shall be attested by the county clerk with the county seal, and such deed shall be prima facie evidence of the truth of all the facts therein recited, and no more, and such deed shall be, as far as practicable, in the following form"[giving form].

The only objection made to this deed is the omission of the words "at the door of the court-house."These words are not, in my opinion, matter of substance.They are not words that must appear in the deed, showing a compliance with conditions precedent to the right to sell, and upon which the authority to sell depends, but merely designate the place of sale for the convenience of purchasers.

Section 104 provides that "tax deeds shall be prima facie evidence--

"First.That the land conveyed was subject to taxation, and had been assessed at the time and in the manner required by law.

"Second.That the taxes were not paid at any time before the sale.

"Third.That the lands conveyed had not been redeemed from the sale at the date of the deed.

"Fourth.That the land was advertised for sale in the manner required by law.

"Fifth.That the land was sold for taxes, as stated in the deed.

"Sixth.That the grantee in the deed was the purchaser, or his or her assignee.

"Seventh.That the sale was conducted as required by law, and this shall apply as well to private as to public sales made by the treasurer for taxes," etc.

The deed in question contains the following recital: "And it appearing that said lands were legally liable for taxation, and had been duly assessed and properly charged on the tax book or duplicate for the year 1870, and that said lands had been legally advertised for sale for taxes, and were sold on the fourth day of September, 1871," etc.

The deed also contains this recital:

"Whereas, J. H. Hungate did, on the sixth day of September, 1873, produce to the undersigned, Alexander Reed, treasurer of the county of Washington, in the state of Nebraska, a certificate of purchase in writing, bearing date the fourth day of September, 1871, signed by Alexander Reed, who at the last-mentioned date was treasurer of said county, from which it appears that said J. H. Hungate did, on the fourth day of September, purchase at public tax sale the tract," etc.

Under our statute a tax deed, as near as practicable in the statutory form, is prima facie evidence not only of the regularity of the sale, but of all prior proceedings and of the title of the purchaser.The burden of proof...