Johnson Cnty. v. Tierney

• Decision Date: 03 November 1898
• Citation: 76 N.W. 1090,56 Neb. 514
• Parties: JOHNSON COUNTY v. TIERNEY et al.
• Court: Nebraska Supreme Court

56 Neb. 514

76 N.W. 1090

JOHNSON COUNTY

v.TIERNEY et al.^*

Supreme Court of Nebraska.

Nov. 3, 1898.

Syllabus by the Court.

1. As between the life tenant and the owner of the fee, it is the duty of the former to pay all taxes charged against the land during the continuance of his estate.

2. The revenue law of 1871 declared real-estate taxes to be a perpetual lien on the land against which they were levied. By subsequent legislation this lien has been preserved and continued in force.

3. It was made the duty of the county treasurer, by section 50 of the act of 1871, to collect delinquent real-estate taxes by seizure and sale of the owner's chattels, if any could be found.

4. But the failure of the treasurer to discharge such duty by distraining the personalty of the life tenant did not devest the lien of the taxes from the reversioner's interest in the land.

5. Since 1877 the county treasurer has possessed no authority to sell personal property for taxes assessed against real estate prior to that time.

6. The failure of an assessor to attach his oath to, and return the same with, the assessment roll, is a mere irregularity, which does not affect the validity of the tax.

7. In the absence of evidence to the contrary, it will be presumed that a public officer proceeded regularly, and performed his official duties within the law, and in obedience to its mandate.

8. Where a board of equalization, without authority, increases the valuation of real estate as fixed by the assessor, the taxes apportioned against such real estate will be valid only to the extent that they are based on the original assessment.

9. Where part of a city lot is condemned by a railroad company for its right of way, the remainder is sufficiently described, for purposes of taxation, as a fractional lot.

10. A tax is void for uncertainty which is assessed and levied against an entire city lot under the description, “part of lot 5 in block 41.”

11. A tax based on an assessment en masse of contiguous lots which are so situated as to be incapable of separate valuation is not void, and affords no just ground of complaint to the owner whose personalty was liable for the tax at the time the same was levied.

12. Where land owned by one person is assessed with the land of another, under one aggregate valuation, so that neither owner can determine the amount for which his property is liable, the entire tax is void.

Appeal from district court, Johnson county; Bush, Judge.

Action by William Cummings against Ida Tierney and others. There was a judgment overruling its claim for taxes, and defendant the county of Johnson appeals. Reversed.J. Hall Hitchcock, J. W. Deweese, and F. E. Bishop, for appellant.

M. B. C. True, Hugh La Master, and Fredk. Shepherd, for appellees.

SULLIVAN, J.

In 1872 Mary A. Tierney, being the fee owner of lots 5, 6, and 7 in block 41 of the city of Tecumseh, in Johnson county, died intestate, leaving, her surviving, Kyron Tierney, her husband, and six minor children. As tenant by the curtesy, Kyron occupied and enjoyed the use of the lots from 1871 to 1894, but did not pay the taxes levied against the same, except for the years 1877 to 1881. In 1893 William Cummings purchased at execution sale the interest of George Tierney in the premises, and thereby became the owner of an undivided one-sixth of the same. He then, after the death of Kyron Tierney, brought this action to partition the property, and made the county of Johnson a party defendant. There is no dispute between the plaintiff and the heirs regarding their respective interests. The entire controversy in the case arises out of the claim of Johnson county for taxes. The district court appointed Corydon Rood, Esq., referee to ascertain the liens and incumbrances existing against the lots; and from his report it appears,in addition to the facts already stated, that the taxes from 1871 to 1877 might have been collected by the seizure and sale of Kyron Tierney's personal property. The district court was of the opinion that the taxes for these years had ceased to be a lien on the premises, and disallowed the claim of Johnson county therefor. The correctness of this holding is the first question presented for decision by the appeal. Section 50 of the revenue act in force during the period in question is as follows: “On the first day of May of the year after which taxes shall have been assessed, all unpaid state, county, school, precinct, city, and villages, except city taxes in cities of first class, shall become delinquent, and shall draw thereafter one per cent. per month interest, which interest shall be collected the same as the tax so due, and it shall be the duty of the county treasurer, or any other person charged with the collection of delinquent taxes, to proceed as soon after the first day of May as practicable to make such delinquent tax out of the personal property of such delinquent, if any such property can be found; and this provision shall apply as well to the taxes assessed on real estate and remaining unpaid, as to delinquent taxes assessed on personal property, and the remedy to be pursued shall be the same as provided in sections forty-nine and fifty-two of this act; and the treasurer shall be entitled to five per cent. additional compensation for making such collection, to be paid by such delinquent, and also the fees now prescribed by law.” Gen. St. 1873, p. 916, c. 66, § 50; Sess. Laws 1871, p. 81, § 1. Other sections of the act made taxes upon real property a perpetual lien thereon “against all persons and bodies corporate,” and required every person subject to taxation to attend at the treasurer's office and pay his taxes without demand. The proposition for which appellees contend is that the failure of the treasurer to collect the taxes by distress and sale of Kyron Tierney's personalty devested the lien from their reversionary interest in the land. We do not think it did. As between the heirs and the tenant for life, it was undoubtedly the duty of the latter to pay all taxes assessed against the land during the continuance of his estate. Disher v. Disher, 45 Neb. 100, 63 N. W. 368;Prettyman v. Walston, 34 Ill. 175;Thompson v. McCorkle, 136 Ind. 484, 34 N. E. 813, and 36 N. E. 211; 1 Washb. Real Prop. §§ 96, 97. This was a duty due from Kyron Tierney to the owners of the fee, and one which they might, by an appropriate action, enforce at any time. The taxes were not a lien only upon the particular estate of the life tenant. They were a lien on the land itself, and were payable at the treasurer's office without demand. While section 50 of the act of 1871 remained in force, it prescribed the remedy for enforcing payment of all land taxes. No other remedy could be then pursued. The land could not be sold until the personalty of the delinquent owner had been first exhausted. But when section 50 was repealed, in 1877, the right and the duty of the treasurer to seize chattels for the satisfaction of taxes assessed against real estate no longer existed. State v. Cain, 18 Neb. 631, 26 N. W. 371;Lancaster Co. v. Rush, 35 Neb. 122, 52 N. W. 837. The remedy was modified by the repealing act, but the right remained. The lien of real-estate taxes was fully preserved, and by subsequent legislation has been continued in force. The duty of collecting taxes at the time named in the statute was not imposed on the treasurer of Johnson county for the benefit of these reversioners, but rather to enable the state and municipal or political corporations to which the taxes belong to promptly secure the revenues necessary to meet their current expenses. The treasurer was a public agent, and his duty in this respect was to his principal. The appellees can ground no equity upon his failure to discharge an obligation laid upon him by law for the benefit of the public. The statute made the taxes a perpetual lien, which no mere inaction on the part of the treasurer could release or devest. In Adams v. Osgood, 42 Neb. 450, 60 N. W. 869, it is said: “Whatever may be the rule elsewhere, we think, under our statutes, that the only way by which a valid tax existing against real estate here can be discharged is by the payment of such tax, unless such real estate be sold for taxes, and the holder of the tax lien fails to bring suit to foreclose the same for five years after the expiration of the time to redeem.” The recent case of Johnson v. Finley, 54 Neb. 733, 74 N. W. 1080, is to the same effect. It was there said: “Taxes upon real estate are made a perpetual lien thereon, and the property cannot be relieved from this burden except by a payment of the taxes, or, in case it has been sold, the neglect of the purchaser to bring an action to foreclose his lien until after the statute of limitations has run.” Our conclusion upon this branch of the case is that the failure of the treasurer to make the taxes for the years in question out of the personal property of Kyron Tierney did not discharge such taxes, nor release the land from the lien thereon.

The referee found that the assessor's oath was not attached to the assessment roll for the year 1874, and, in view of this finding, it is claimed that the tax for that year is without any legal basis, and absolutely void. Conceding that the appellant is in the attitude of a plaintiff seeking to foreclose a lien, and that it was required to furnish affirmative proof of every fact essential to its cause of action, we do not think it has failed to prove a valid tax for the year in question. It was not necessary to show that the assessor took the oath which the statute made it his duty to take. He was a public officer, and it will be presumed, in the absence of evidence to the contrary, that he proceeded regularly, and performed his official duties within the law, and in strict obedience to its mandate. The fact that the oath was not annexed to the assessment book is of slight consequence, and altogether insufficient to overthrow the...