Kittle v. Shervin

• Decision Date: 05 January 1881
• Parties: ROBERT KITTLE AND OTHERS, PLAINTIFFS, v. JOHN E. SHERVIN, TREASURER OF DODGE COUNTY, DEFENDANT
• Court: Nebraska Supreme Court

7 N.W. 861

11 Neb. 65

ROBERT KITTLE AND OTHERS, PLAINTIFFS, v. JOHN E. SHERVIN, TREASURER OF DODGE COUNTY, DEFENDANT

Supreme Court of Nebraska

January 5, 1881

ORIGINAL application for an injunction to restrain defendant from issuing a tax deed upon certain property owned by plaintiffs, in pursuance of a sale for taxes thereon plaintiffs contending that the same were void.

Cause dismissed at the cost of the plaintiffs.

R Kittle, for plaintiffs.

Marlow & Munger, for defendant.

OPINION

COBB, J.

In considering the several points arising in this case, I will endeavor to follow the order as I find them in the agreed state of facts submitted by the plaintiffs and defendant omitting, however, No. 1, as that does not present a controverted point.

2. That plaintiffs had, on the first of January, 1876, and up to the present time, owned and occupied the premises the taxation of which constitutes the subject matter of this suit, and have owned and kept thereon publicly "sufficient personal property to more than three times in value of the said taxes of any one year thereon accruing," etc.

The point is here presented that the said county treasurer could not lawfully sell the real estate of the plaintiffs for delinquent taxes as long as they had and possessed personal chattels on the said land sufficient to pay the said taxes.

The law as contained in the General Statutes, secs. 49 and 50, 916, made it the duty of the county treasurer to proceed, as soon after the first day of May of each year as practicable, to collect-all delinquent taxes by the seizure and sale of the personal property of the delinquent tax payers, if any such personal property could be found, and such provision was made to apply "as well to the taxes assessed on real estate and remaining unpaid as to delinquent taxes assessed on personal property." And while said sections remained in force, this court has repeatedly held that a sale by the county treasurer of lands for delinquent taxes assessed thereon, without first making an effort to find personal property out of which to make the taxes, where such delinquent tax payer was the owner of sufficient personal property in the county out of which such taxes could be made, was void. But sections 49 and 50 were repealed by the act of February 15, 1877 [Laws, p. 43], which took effect June 1, 1877, four months before the sale complained of, so that the authority and certainly the reason of the Nebraska cases fail to sustain the position of the plaintiffs on this point.

3. After setting out the several funds into which both the county and city taxes were distributed as assessed upon the said block for the year 1876 the stipulation proceeds to the fourth point, as follows:

"4th. That on the fifth day of December, 1877, the said taxes so levied and assessed remained unpaid * * * The said real estate having been by said treasurer previously advertised for sale for both the taxes levied by said county commissioners and by said city council, and not sold for want of bidders, said county treasurer did, on said fifth day of December, 1877, sell said real estate to J. T. Smith at private sale and without notice to these plaintiffs or opportunity for competition in bidding, except by advertising to sell on a previous and other day than said fifth day of December, as before stated, for said tax of 1876, to-wit: $ 63.70, together with the additional sum of $ 4.55, as interest on the same, and the sum of twenty cents costs of advertising for sale. Total $ 68.45." "And the said treasurer charged the said J. T. Smith, as fees for making said sale, $ 3.40, the five per cent provided by statute in case of actual sales, and the sum of fifty cents for a sale certificate." "And afterwards and on the same day said county treasurer again sold said premises to said J. T. Smith for said city taxes, to wit: $ 25.85 together with the additional sum of $ 1.85, as interest on the same, and twenty cents costs of advertising for sale. Total $ 27.90." "And said treasurer charged said J. T. Smith, as fees for making said sale, $ 1.39, the five per cent fee provided by statute in case of actual sales, and the sum of fifty cents for a sale certificate, making $ 102.16 paid to said treasurer by said J. T. Smith, for which said treasurer, the defendant, claims payment from plaintiffs, together with forty per cent interest thereon from the said fifth day of December, 1877, or in case of failure or refusal of plaintiff to pay said sum and said interest thereon, then in such case defendant, said treasurer, threatens to deed said premises to pay said sum and interest."

The points sought to be established by this clause of the stipulation are, 1st, that the said sale is void for the want of notice and an opportunity for competition at the said sale. The statute in force at the time providing for the sale of lands for delinquent taxes required the county treasurer to give notice of the sale by publication thereof once a week for three consecutive weeks, commencing the first week in August preceding the sale, in a newspaper of his county, if there be one, and if there be no paper published in his county, shall give notice by a written or printed notice posted on the door of the court house * * * and the same statute also provides that, "after the tax sales shall have closed, and after the treasurer has made his return thereof to the county clerk * * * if any real estate remain unsold for the want of bidders therefor, the county treasurer is authorized to sell the same at private sale, at his office, to any person who will pay the amount of taxes, penalty and costs thereof for the same" etc., Gen. Stat., 917, 921.

The advertising and offering of such lands at public sale is a condition precedent to their sale at private sale. But it is expressly stated in the said stipulation that the said real estate had been previously advertised for sale for the said taxes, and not sold for the want of bidders. The very terms "private sale" exclude all idea of publication of notice therefor, and competition in bidding thereat. And 2d, that the said J. T. Smith, the purchaser of said lands, was charged by the said county treasurer for two certificates of sale instead of one.

Section 54 of the revenue law, as found on page 917 of the General Statutes, provided that "whenever in the collection of any district, town, city, or local tax, which may have been levied according to law, the collector is not able to make the tax by distress and sale of personal property, and real estate is to be sold for the same, it shall be the duty of the collector of the tax to send such delinquent list to the county treasurer on or before the 15th day of July of each year, and the county treasurer shall receive the delinquent list, and advertise the same at the same time he advertises the sale of real estate for delinquent taxes as hereinafter provided, by adding the amount of such delinquent district, town, city, or local tax to the amount of the delinquent state, county and other taxes, and shall sell such lands for the purpose of paying all such delinquent taxes as hereinafter directed, and shall credit the proper district, town, city, or locality for the amount of taxes so collected," etc. But sec. 54 was repealed by the act of February 19, 1877--see pages 44--48, laws of 1877--and was not in force at the time of any of the proceedings complained of. Under its provisions it seems quite clear that but one certificate should have been issued and charged for by the county treasurer; but said section being repealed, the county treasurer was, for his authority to sell said property, for delinquent city taxes at all, relegated to section 2 of the act entitled "An act to provide the manner of collecting city taxes in cities of the second class, and to define the duty of certain city officers," approved June 6th, 1871, and to be found on page 157 of the General Statutes. Under the provisions of the latter section there can be no doubt of the power of the county treasurer to make a separate sale of property for delinquent city taxes, and to make a separate certificate of such sale, and I think that it necessarily follows that he would be entitled to charge and receive the same fee therefor, as upon sales for delinquent county taxes. But suppose I am wrong in this conclusion. It is neither claimed or admitted in the said stipulation that the said treasurer sold the said real estate for said delinquent taxes including the said certificate fee of fifty cents. But the complaint on this point is that the said county treasurer charged and received from the said J. T. Smith the said sum for the said certificate.

The fourth and fifth paragraphs of the stipulation relate to the payment, by the said J. T. Smith, of the delinquent taxes on the said real estate for the years 1877 and 1878, upon which no point seems to be made. Paragraphs 6 and 7, which will be considered together, are as follows:

"6. That said plaintiffs being unable to pay said taxes before the fifth day of September, 1879, for causes beyond their control, did on that day offer to pay to said treasurer the said sum of $ 102.16, with interest thereon from the fifth day of December, 1877, at the rate of 12 per cent per annum, on condition that the said sale of said block 2 be cancelled and declared by said treasurer void, and the taxes on said premises for the year 1876 to be receipted paid by plaintiffs, and so marked on the tax book of that year, which offer was then and there rejected by said treasurer," etc.

"7. That said treasurer then and there demanded the said sum of $ 102.16, and the said several sums which appear as aforesaid to have been paid by the said J. T. Smith, together with 40 per cent per annum interest...