King v. Boettcher
| Decision Date | 29 May 1914 |
| Docket Number | 17,463 |
| Citation | 147 N.W. 836,96 Neb. 319 |
| Parties | LENA KING, APPELLANT, v. CHARLES H. BOETTCHER ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Reversed in part and affirmed in part.
Judgment reversed in part and affirmed in part.
Morning & Ledwith, for appellant.
F. A Boehmer & Son, Frank E. Edgerton and A. W. Lane, contra.
The plaintiff, Lena King, seeks by this action to perfect her title to lot 3, block 85, in Lincoln, Lancaster county, Nebraska. Frances B. O'Reilly died testate in Mobile, Alabama, her home, in February, 1887. Her will was probated. By its provisions the testatrix devised her property in Mobile, Alabama, to Charles I. Green, as trustee, so that her son, Ignatius J. O'Reilly, the father of this plaintiff, should have the use thereof during his lifetime, and after his death the remainder to descend to his children or the survivor or survivors of them living at the time of the father's death, share and share alike.
In 1891, or thereabouts, the family homestead in Mobile, Alabama, was sold, and the proceeds were invested by the trustee in lot 3, block 85, Lincoln, Lancaster county, Nebraska. That is the property involved in this controversy. The deed to the Lincoln property conveyed the title to Ignatius J. O'Reilly for life, and after his death to his two children, Lena O'Reilly, now Lena King, the plaintiff herein, and to her brother, John O'Reilly, now deceased, share and share alike. It is claimed by the plaintiff that this deed failed to provide, as the will directed, that the remainder estate should vest in the survivor of the children of the said Ignatius J. O'Reilly. The will provided that Ignatius O'Reilly should have the use of the Alabama property during his lifetime, and after his death this homestead was to go to the children of Ignatius O'Reilly, born and to be born of his then wife, or to the survivor or survivors of them, living at the time of the death of Ignatius J. O'Reilly, share and share alike. It was provided in the will that the homestead might be sold for the purposes of reinvestment in real estate in some other state if desired. Such request was made, and the executor and trustee conveyed said homestead, and took the proceeds of the same and invested such proceeds in the real estate in controversy. Lena O'Reilly and her brother, John O'Reilly, were the heirs at law of the remainder estate so disposed of and reinvested in said lot 3, in block 85, Lincoln, Nebraska.
About the year 1896 John O'Reilly, then of the age of about 16 years, died intestate, unmarried, and without issue. The plaintiff is the only surviving child of said Ignatius J. O'Reilly. Said Ignatius J. O'Reilly is divorced from his wife, Addie E. O'Reilly, the mother of the plaintiff, and appellant. Under the terms of the will, if it shall be applied to lot 3, the plaintiff is the owner of the entire remainder estate in said real estate.
When the real estate in Mobile, Alabama, was sold, and the proceeds invested by the trustee in said lot 3, and in accordance with the trust vested in him, the deed which was made to the Lincoln property failed to provide that the remainder estate should vest in the survivor of the children of said Ignatius J. O'Reilly. This was an omission and contrary to the terms of the will. The deed as made is recorded in book 62 at page 175 of the records of Lancaster county on the 6th day of April, 1891.
Ignatius J. O'Reilly was divorced from his wife, Addie E. O'Reilly, subsequent to the probate of the will of said Frances B. O'Reilly, and the plaintiff, Lena King, and her brother, John O'Reilly were the only children born to Addie E. O'Reilly, and were the only children referred to in the will of the said Frances B. O'Reilly.
On the 9th day of March, 1907, Ignatius J. O'Reilly, who was then unmarried, conveyed by quitclaim deed to appellee, Charles H. Boettcher, said lot 3, and omitted to recite in said conveyance that only the life estate which he held in said property was conveyed.
At the time of the said conveyance by Ignatius J. O'Reilly to the said Charles H. Boettcher there was an outstanding "scavenger" tax sale certificate. It was issued on November 2, 1905, to the said Charles H. Boettcher, the purchaser, for the sum of $ 500.27. Charles H. Boettcher could acquire by the quitclaim deed made to him by Ignatius J. O'Reilly only the life estate which said O'Reilly had in the property. He could acquire only the interest which Ignatius J. O'Reilly had. The defendant Charles H. Boettcher entered into possession of said lot 3 under the said quitclaim deed, and his possession has since been continued until the present time. Ignatius J. O'Reilly and the defendant Charles H. Boettcher failed to pay the taxes against said lot for the years 1899 to 1904, inclusive. They failed to pay the general taxes, as well as special assessments, and permitted the same to become delinquent, and the property was sold for such delinquent taxes.
On July 1, 1905, a petition was filed in the district court for Lancaster county, Nebraska, under chapter 77, art. IX, Comp. St. 1903. Notice of said action was published, and notice was given that the property was taxed for $ 516.21, $ 243.91 being regular taxes for the years 1895, 1899 to 1904, inclusive; that $ 181.93 was for regular city taxes for said years, and $ 95.37 for unpaid paving taxes for the paving of the streets of the city in front of said property. Service by publication was had against said property that "I. O'Reilly" is the owner. Said property was taxed in that name. A default decree was entered against said lot 3 in September, 1895; the lot being described as tract No. 0393. After the default decree notice was published under the said "Scavenger Act," and on November 2, 1905, a sale of said lot was made to the defendant Charles H. Boettcher, and said certificate of sale above mentioned was issued to him. On July 25, 1907, an affidavit for publishing a final notice was filed in said tax suit, a copy of which is attached to the plaintiff's petition. Said affidavit is the only affidavit for service by publication which was filed in said suit. A certain notice designated "Final Notice" was published in a newspaper known as the "Legal News," and proof thereof was filed in said tax suit on August 12, 1907. Copies of the same are attached to the petition.
On November 4, 1907, two years and two days after the date of the sale of the said property, notice of confirmation was entered in confirmation record book 1, at page 2. Said notice by its terms fixed the date for the confirmation of the sale of said property as November 9, 1907. No proceedings were had on said suit on said day; but on the 16th day of November, 1907, an order of confirmation was entered in said suit, and on the 16th day of November aforesaid there was issued to Charles H. Boettcher a sheriff's deed which purported to convey said lot to him. This deed was duly recorded. Plaintiff, during the proceedings in said tax suit, claimed to have been a nonresident, and to have been absent from the state of Nebraska, and to have had no knowledge or personal notice of said tax procedure and made no appearance therein. The evidence shows this claim to be sustained. The defendant Boettcher now claims to be the owner in fee of said property, and disputes plaintiff's right to the same. He occupies and controls the same adversely to the plaintiff. It is shown that the defendant Boettcher refuses to liquidate and discharge the liens for taxes against said property. He is apparently endeavoring to permit his title to ripen into a fee simple title, and thereby is attempting to cut off plaintiff's interest in the property.
It is claimed by the plaintiff that the tax deed issued to said Charles H. Boettcher is void, and does not convey the title to said real estate to said Charles H. Boettcher, for the reason that it was the duty of the said Boettcher to pay all taxes on said property and to redeem it from said tax sale he being the life tenant of said real estate. It is further claimed by the plaintiff that said deed is void because no affidavit of service of "Final Notice" by publication addressed to the plaintiff was filed in said suit. It was also claimed that no "Final Notice" as required by the "Scavenger Act" was given to plaintiff or addressed to her in the notice published in said suit; also, because the holder of said certificate on or before the last day of the redemption, November 2, 1907, either by himself or agent, entered in the "Confirmation Record" the date of the decree entered in said suit, and did not enter the time nor the place where the hearing would be had at such confirmation, as required by said act; and because no valid confirmation of said sale was ever had. It is alleged that the defendant Auguste Boettcher is the wife of the defendant Charles H. Boettcher; that Ignatius J. O'Reilly has no interest of any kind in the property, and that the other defendants are tenants. The plaintiff prays that her interest in said property may be established; that the tax liens and party-wall agreements and tax deeds held by Charles H. Boettcher, all of which are alleged to cast a cloud upon her title, may be canceled and the cloud cast thereby removed; that, if the court finds any of the taxes or special assessments to constitute a special lien upon the property, plaintiff may be permitted to redeem; and that the defendant be required to account for rents and profits received by him while in possession of the property; and, if it be found that plaintiff be liable for taxes on special assessments, that she be permitted to pay all or any part...
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