King v. Boettcher
| Decision Date | 29 May 1914 |
| Docket Number | No. 17463.,17463. |
| Citation | 147 N.W. 836,96 Neb. 319 |
| Parties | KING v. BOETTCHER ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
“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.” Spiech v. Tierney, 56 Neb. 514, 76 N. W. 1090;Disher v. Disher, 45 Neb. 100, 63 N. W. 368.
The purchaser of the life estate assumes by such purchase the burden of paying the taxes which the law imposed upon his grantor, and may not escape such burden by the claim that he was not liable for the taxes until he made the purchase.
Where the will of the testatrix authorized the executor to sell certain lands in Alabama, and to invest the proceeds of the sale elsewhere, and accordingly such real estate was sold, and the proceeds invested in a lot in the city of Lincoln, held, that the conditions of the will touching the right of survivorship between remaindermen will be applied and carried out as to the property purchased.
Where the purchaser of a life estate in real property received a quitclaim deed thereto which neglected to recite that the interest conveyed was the life estate of the grantor, the purchaser may not lawfully claim greater interest in the property than the grantor had to sell.
All persons claiming an interest in or a lien upon real estate are bound to take notice of the recitation in a duly recorded deed in the chain of title of their grantor. Mathews v. Jones, 47 Neb. 616, 66 N. W. 622;Albers v. Kozeluh, 68 Neb. 522, 94 N. W. 521, 97 N. W. 646.
The Scavenger Act (Comp. St. 1903, c. 77, art. 9), should receive a liberal construction in favor of the owner where he seeks to redeem from the sale made, and he should be allowed to redeem where full and actual compliance with the statute has not been observed. Ambler v. Patterson, 80 Neb. 570, 575, 114 N. W. 781.
Notice of the time when the redemption of land from tax sale will expire must be given by the tax purchaser or his assignees before the expiration of the time to redeem. Ambler v. Patterson, 80 Neb. 570, 114 N. W. 781.
Appeal from District Court, Lancaster County; Frost, Judge.
Action by Lena King against Charles H. Boettcher, revived in name of Frank H. Boehmer, executor of Charles H. Boettcher, deceased, and others. From judgment for defendants, plaintiff appeals. Reversed in part, and affirmed in part.
Morning & Ledwith, of Lincoln, for appellant.
A. W. Lane, F. A. Boehmer, and F. E. Edgerton, all of Lincoln, for appellees.
The plaintiff, Lena King, seeks by this action to perfect her title to lot 3, block 85, in Lincoln, Lancaster county, Neb. Frances B. O'Reilly died testate in Mobile, Ala., her home, in February, 1887. Her will was probated. By its provisions the testatrix devised her property in Mobile, Ala., 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, Ala., was sold, and the proceeds were invested by the trustee in lot 3, block 85, Lincoln, Lancaster county, Neb. 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, Neb.
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, Ala., 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 of Lancaster county, Neb., under chapter 77, art. 9, of the Compiled Statutes of 1903. Notice of said action was published, and notice was given that the property was taxed for $516.21, $243.01 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, 2 years and 2 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...
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