Helprey v. Redick

• Decision Date: 06 January 1887
• Citation: 21 Neb. 80,31 N.W. 256
• Parties: HELPREY v. REDICK AND OTHERS.
• Court: Nebraska Supreme Court

21 Neb. 80

31 N.W. 256

HELPREY

v.REDICK AND OTHERS.

Supreme Court of Nebraska.

January 6, 1887.

Syllabus by the Court.

A judgment only binds parties and privies. A tax purchaser of real estate, not a party to an action to enjoin the treasurer from issuing a deed, nor appearing in the action, is not bound by the decree.

An action to foreclose a tax lien on real estate may be brought on the tax certificate, where it is alleged in the petition that a deed would be invalid if issued; and such action may be brought within the same time as if brought on a tax deed the title under which had failed.

A notice to redeem is not indispensable before bringing an action to foreclose a tax lien, although the failure to give such notice in certain cases may affect the question of costs. Lammers v. Comstock, 30 N. W. Rep. 251.

Appeal from district court, Douglas county.

Action by purchaser at tax sale to enforce lien for taxes paid.Groff & Montgomery, for appellee, Helprey.

Redick & Redick, for appellants, Redick and others.

MAXWELL, C. J.

In December, 1881, the appellee filed a petition in the district court of Douglas county, in which he alleged that in September, 1876, he purchased at public tax sale the N. 1/2 of the N. E. 1/4 of section 8, township 15, range 13, in said county, for $68.18, being the taxes due on said land for the year 1875; that afterwards he paid the taxes due on said land for the year 1876, being $131.70, and for 1877, being $117.35; that before a tax deed was issued to the appellee the appellant obtained an injunction restraining the county treasurer from issuing said deed. The appellee waived all claim to the title to said property, but seeks to enforce his lien for taxes thereon, amounting to the sum of $317.23, with interest, etc.

In February, 1877, the appellant was appointed guardian ad litem for the minor defendants, and filed an answer as follows: That their grantor, John I. Redick, brought suit and obtained an injunction, which was afterwards made perpetual, enjoining the county treasurer from issuing a tax deed for said property to the purchaser, on the ground that all the taxes for which it was sold were illegal and void, and the decree entered therein has never been reversed, and pleading said decree in bar of this action; (2) that the defendants are all minors, and became the owners of the property, March 13, 1878; (3) that at the time of the sale John I. Redick had personal property to pay the taxes; (4) that the cause of action did not accrue within five years next before the commencement of the suit, and is barred; (5) that the taxes are illegal and void for the want of a valid assessment; (6) that no notice was served upon them, as required by section 123 of revenue law.

And on March 18, 1885, plaintiff filed his reply as follows: That he was not served, and did not voluntarily appear, in said injunction suit, and denying specifically all the allegations of the answer, except that defendants are minors.

Afterwards there was a trial to the court, and the following proceedings were had: The plaintiff introduced the petition in the case of John I. Redick v. W. F. Heins, Treasurer of Douglas Co., and F. P. Helprey, alleging that plaintiff was the owner of the N. 1/2 of N. E. 1/4 of section 9, township 15, range 13, in said county; that a portion of it had been sold to said Helprey for the taxes of 1875; that said taxes were illegal and void, for reasons set forth in said petition; that said Helprey is about to take out a deed; and asking an injunction, etc.; also the temporary order of injunction, enjoining the treasurer from issuing a deed; also return on summons showing personal service on said Heins, and that the defendant, Helprey, could not be found in Douglas county; also entry of default against Heins, and the decree in said cause finding all the allegations of the petition to be true; that the sale and certificate were unauthorized and void; that the assessment was illegal, and did not become a lien on said property; and decreeing that the injunction be made perpetual.

After argument, the cause was taken under advisement, and on October 15, 1885, a decree was entered finding in favor of the plaintiff; that the plaintiff's title had failed, and that he had a lien for $628.55; that defendants pay said amount within 30 days, or the property be sold, etc.,--to all of which findings defendants excepted.

Two questions are presented by the record: First. Is the...