Keens v. Gaslin

• Decision Date: 03 July 1888
• Parties: FRANCIS G. KEENS, ELLA J. KEENS, WILLIAM J. NEELEY, AND REBECCA S. NEELEY, PLAINTIFFS IN ERROR, v. WILLIAM GASLIN, JR., DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

38 N.W. 797

24 Neb. 310

FRANCIS G. KEENS, ELLA J. KEENS, WILLIAM J. NEELEY, AND REBECCA S. NEELEY, PLAINTIFFS IN ERROR, v. WILLIAM GASLIN, JR., DEFENDANT IN ERROR

Supreme Court of Nebraska

July 3, 1888

ERROR to the district court for Buffalo county. Tried below before MORRIS, J.

AFFIRMED.

Calkins & Pratt, for plaintiffs in error, cited: 2 Wait's Practice, 364c. Pomeroy's Eq. Juris., Sec. 395. Gregory v. Lancaster County Bank, 16 Neb. 411.

John M Stewart, for defendant in error, cited: Pomeroy, Sec. 435. Bliss on Code Pleading, Sec. 132. Boone Code Pleading, Sec 53. Maxwell's Pleading (1885), 57. Cropsey v Wiggenhorn, 3 Neb. 115. Wilcox v. Saunders, 4 Neb. 586. Mining Co. v. Clarkin, 14 Cal. 548. N. Y. Ice Co. v. N. W. Ins. Co., 23 N.Y. 357. Bradley v. Aldrich, 40 N.Y. 504. Guernsey v. Ins. Co., 17 Minn. 104. Dupont v. Davis, 35 Wis. 631. Edwards v. Rainier, 17 O. St., 597.

OPINION

MAXWELL, J.

In 1882, one John S. Lemon brought an action in the district court of Buffalo county against the plaintiffs in error, to remove a cloud upon certain real estate described in the petition, which he alleged was owned by him. Various transfers of the property took place pending the litigation, and in 1884 the defendant in error became possessed of said land, and on application to the district court was substituted as plaintiff, and on leave filed an amended petition, as follows:

"That the said John S. Lemon was, on the 1st day of January, 1877, owner in fee simple of the following described premises situated in the county of Buffalo, state of Nebraska, to-wit: The west 1/2 south-west 1/4 of section 20, township 10 north, of range 15 west; that said plaintiff, William Gaslin, Jr., since the commencement of this case, obtained title in fee simple to said premises by deed, duly executed, acknowledged, and delivered, and by leave of court was duly made plaintiff in this case, and is now the owner in fee simple of said land, and the real party in interest in this case, and has been since his substitution for said Lemon. In the year 1877, at the time provided by law, the board of county commissioners in said Buffalo county, among other taxes for that year and without authority of law, levied a tax known as 'sinking fund,' levied as a sinking fund for the payment of part of the principal and interest on all outstanding and floating debts of the county excepting the bonded debts of said county; contrary to law said pretended sinking fund tax was duly carried upon the tax list for that year, and on the 6th day of November, A. D. 1878, said pretended tax stood unlawfully charged against the property above described in the sum of $ 1, and on the said 6th day of November, A. D. 1878, the treasurer of said Buffalo county, without authority of law, sold said premises for said illegal tax, together with other taxes legally chargeable against the same, amounting in all to the sum of $ 10.42, to Francis G. Keens, defendant. Subsequent taxes have been paid on said premises by said Francis G. Keens, as follows:

1878

$ 6.36

1879

4.00

1880

5.00

Interest on $ 9.42 of 1877 tax, and on subsequent taxes to the commencement of this action, is the sum of $ 7.38, making in all paid by said Keens, with interest at the rate of 12 per cent, of the sum of $ 32.16. On the 15th day of November, A. D. 1881, the plaintiff tendered to said Francis G. Keens the amount paid by him in purchasing said lands and subsequent taxes, with 12 per cent interest thereon, which he refused, and the plaintiff now offers to pay the taxes justly (due) against said land, with interest at 12 per cent per annum. Afterwards, and on the 22d day of November, 1880, the treasurer of said county issued to Francis G. Keens a tax deed for said land under said pretended sale, and on the 22d day of November, A. D. 1880, said tax deed was duly filed for record in the office of the county clerk for Buffalo county, and was duly recorded in book "K" of deeds of said county, on page 93, and still remains unsatisfied of record, and is a cloud upon the plaintiff's title.

"On the 1st day of July, 1881, the said Francis G. Keens and Ella J. Keens, his wife, conveyed by warranty deed said lands to William J. Neeley, which deed was thereafter duly filed for record in the county clerk's office for Buffalo county aforesaid, and still remains unsatisfied of record, and a cloud upon the plaintiff's title.

"On the 1st day of July, A. D. 1881, this said William J. Neeley and Rebecca S. Neeley, his wife, gave their mortgage deed of that date to said Francis G. Keens upon said land, which deed was thereafter duly filed for record and recorded in the county clerk's office for Buffalo county, and still remains of record unsatisfied, and a cloud upon the plaintiff's title.

"That on April 20, A. D. 1883, the said John S. Lemon sold and conveyed, by deed duly executed, delivered, and recorded in said Buffalo county record of deeds, the said premises described in said petition to late Samuel L. Savidge; that said Samuel L. Savidge deceased in said Buffalo county, November 30, 1883, whose interest and interests of whose estate and heirs were duly and legally sold to said Gaslin, on or about the 3d day of May, 1884, by administrators of said estate of said Savidge, to pay debt of said estate, and a deed of conveyance of said land executed and delivered to said Gaslin by administrator of said estate, which deed and all proceedings therein had were in due and legal form, and the said Gaslin is now the owner and has been since the 3d day of May, 1884, in fee simple, of said land, and the real and only party plaintiff in interest in this case. The plaintiff further shows to the court that said tax sale and assessment is irregular and illegal, for the reason that the whole 80 acres of land in this case described was offered and sold for the tax of year complained of, instead of offering and selling sufficient thereof to pay said tax, when in truth and fact a small fraction and quantity would have sold for sufficient to pay said tax and all taxes thereon.

"Plaintiff further says that the said tax deed copy hereto annexed, noted 'Exhibit A,' is void on its face, and of no validity or legal form whatever, for the reason it is not stated therein said land was sold at the court-house or place of holding court, or at treasurer's office, where by law the taxes are payable; the execution of said deed is not attested by the county clerk with county seal, nor is attested by the official seal of county treasurer, nor by any seal whatever. Said deed fails to show to whom the said land was sold, fails to show any consideration.

"SECOND CAUSE OF ACTION.

"The plaintiff further complains, and their second cause of action says, that the said plaintiff, William Gaslin, Jr., has a legal estate in and is entitled to the possession of the said W. 1/2 south-west 1/4 section 20, township 10, range 15 west, Buffalo county, Nebraska, and said defendant, William J. Neeley, ever since the 1st day of January, 1882, has kept the said plaintiff and his grantors out of possession of the same.

"THIRD CAUSE OF ACTION.

"The said defendant, William J. Neeley, while unlawfully in possession of said W. 1/2 south-west 1/4 section 20, township 10 N., range 15 west, Buffalo county, Nebraska, has received the rents and profits thereof from the 1st day of January, A. D. 1882, to the commencement of this action, amounting to the sum of $ 50, and has applied the same to his own...