Howard v. Lamaster

• Decision Date: 12 November 1881
• Citation: 11 Neb. 582,10 N.W. 497
• Parties: HOWARD AND OTHERS v. LAMASTER.
• Court: Nebraska Supreme Court

11 Neb. 582

10 N.W. 497

HOWARD AND OTHERS

v.LAMASTER.

Supreme Court of Nebraska.

Filed November 12, 1881.

Error to the district court for Lancaster county.Tried below before Pound, J.Harwood & Ames, for plaintiff.The omitted recital in the deed is not one of a jurisdictional fact, and the instrument is prima facie valid.Maxwell, C. J., dissenting, in Haller v. Blaco,10 Neb. 36;Scott v. Pleasants,21 Ark. 370;Hurlbut v. Dyer,36 Iowa, 474;Bowman v. Cockrell,6 Kan. 311;Elbridge v. Kuehl,27 Iowa, 160.

A. C. Ricketts, for defendant, cited Haller v. Blaco,10 Neb. 36;Moore v. Brown,11 How. 414;Cooley, Taxation, 338;Lain v. Cooks,15 Wis. 446; Blackwell, Tax Titles, 571, 580.

MAXWELL, C. J.

This is an action of ejectment to recover the possession of lot 10, in block 96, in the city of Lincoln.The answer consists-- First, of a general denial; second, it is alleged in substance that the premises in controversy were sold in September, 1874, for the taxes of 1873, being the sum of $11, to George E. Church; and that afterwards, on the twentieth day of October, 1876, no one having redeemed said real estate from tax sale, and the tax certificate having been assigned to Alice A. Church, was by her presented and surrendered to the treasurer of said county, who thereupon made and delivered to her a tax deed for said premises, which, on the second day of November, 1876, was duly recorded; that the defendants have paid the taxes assessed on said property for the years 1874, 1875, 1876, 1877, and 1878, amounting in all to $64.45, no part of which has been paid; and that prior to the commencement of the action George E. Church and Alice A. Church conveyed to R. H. Oakley and S. G. Owen, who were in possession and have made valuable improvements on said premises.The reply consists-- First, of a general denial; second, it is alleged in substance that the tax proceedings were void, and that the plaintiff in the court below, prior to the commencement of the action, tendered the full amount of taxes, etc., and now offers to pay the same.A verdict was rendered in the court below in favor of Lamaster.Oakley and Owen bring the cause into this court by petition in error.

The defendants, in the court below, offered in evidence the tax deed for the real estate in controversy, which was objected to upon the ground that it did “not show on its face where the land was sold.”The objection was sustained and the deed excluded.This is assigned for error.

In Haller...