Humphrey v. Hays

• Decision Date: 22 October 1909
• Docket Number: No. 15,787.,15,787.
• Citation: 85 Neb. 239,122 N.W. 987
• Parties: HUMPHREY v. HAYS ET AL.
• Court: Nebraska Supreme Court

85 Neb. 239

122 N.W. 987

HUMPHREY

v.HAYS ET AL.

No. 15,787.

Supreme Court of Nebraska.

Oct. 22, 1909.

Syllabus by the Court.

A decree foreclosing a tax lien based upon service by publication, where the owner of the land is a resident of this state upon whom personalservice of summons could have been made, and the affidavit for service contains no statements which would authorize constructive service upon the land against which the taxes were assessed, is void; and such a decree may be attacked in an action to redeem the premises from the lien for taxes and remove the cloud created thereon by such void decree.

In such a case the plaintiff should be allowed to redeem upon the payment of the tax lien, the taxes subsequently paid on the premises, together with the interest thereon, and the value of the permanent improvements, if any, made upon such premises by the purchaser or those claiming under him.

In an action to quiet title as against a sale for taxes made under a void decree of court, an offer to pay such sum as the court may find due the defendants on account of any lien for taxes paid is a sufficient offer to do equity and a sufficient tender of any taxes due the defendants. Payne v. Anderson, 80 Neb. 216, 114 N. W. 148.

Appeal from District Court, Antelope County; Welch, Judge.

Action by Seth K. Humphrey against Oliver M. Hays and others. Judgment for plaintiff, and defendants appeal. Affirmed.

E. D. Kilbourn, for appellants.

C. H. Kelsey and N. D. Jackson, for appellee.

BARNES, J.

Action to quiet title to the southwest quarter of section 7, township 24, range 8 west, in Antelope county, Neb. Plaintiff had judgment, and the defendant has appealed.

It appears that on and prior to the 8th day of September, 1899, the Stapleton Land Company, a corporation duly organized under the laws of the state of Nebraska, having its principal place of business in Douglas county, was the owner of the land in question; that taxes for the years 1893-1898 had been assessed against the land and at that time were due and delinquent; that on the date first above mentioned the county of Antelope filed its petition in the district court to foreclose its tax lien thereon; that a decree was rendered in said action and the land was sold thereunder to Emmett Hays, one of the defendants herein, who received a sheriff's deed therefor; that thereafter he conveyed the premises to his codefendant Oliver M. Hays. It further appears that the Nebraska Farm Land Company, a successor to the Stapleton Land Company above mentioned, took over all of the real estate of the former company and became the owner thereof, and in October, 1904, sold and conveyed the premises in question to the plaintiff herein; that thereafter plaintiff commenced this action for the purpose above mentioned, and alleged in his petition, among other things, that at the time the action was commenced the then owner of the premises was a corporation organized and existing under the laws of the state of Nebraska, having its principal place of business in Douglas county, Neb., where for many years both before and after the commencement of the action it was carrying on its business and maintaining an office where personal service of summons could have been had and made in said foreclosure suit in the manner provided by law; that, notwithstanding that fact, which was well known to the plaintiff in the tax foreclosure suit, no service was had or made upon the then owner of the land, the principal defendant therein, and that the only service of summons in said case was by publication; that the affidavit for such service was insufficient to authorize service upon the land as an action in rem and that because of the fact of its insufficiency, and because the plaintiff in that action could have obtained personal service of summons upon the then owner of the land, which was a Nebraska corporation, and whose place of business at that time was in Douglas county in said state, the court never acquired any...