Larson v. Dickey

• Decision Date: 20 February 1894
• Docket Number: 5196
• Citation: 58 N.W. 167,39 Neb. 463
• Parties: SOPHIA F. LARSON, APPELLANT, v. J. B. DICKEY ET AL., APPELLEES
• Court: Nebraska Supreme Court

58 N.W. 167

39 Neb. 463

SOPHIA F. LARSON, APPELLANT, v. J. B. DICKEY ET AL., APPELLEES

No. 5196

Supreme Court of Nebraska

February 20, 1894

APPEAL from the district court of Douglas county.Heard below before WAKELEY, J.

REVERSED AND REMANDED.

James B. Meikle and George W. Covell, for appellant:

The appellant contends that she has a right to show by the tax list that the delinquent taxes for the year 1885 were not carried forward upon the tax list of 1886, and in consequence thereof that the appellant had no notice the taxes for the year 1885 were delinquent.The provision of section 130 chapter 77, Compiled Statutes, which provides that a tax deed shall be conclusive evidence of the following facts is unconstitutional and void for the reason that it is in conflict with the constitutional provision that no person shall be deprived of life, liberty, or property without due process of law: That the manner in which the listing assessment, levy, and sale were conducted was in all respects as the law directed; that the grantee named in the deed was the purchaser or his assignee; that all the prerequisites of the law were complied with by all the officers who had, or whose duty it was to have had, any transaction relating to or affecting the title conveyed or purporting to be conveyed by the deed, from the listing or valuation of the property up to the execution of the deed inclusive, and that all things whatsoever required by law to make a good and valid sale and to vest the title in the purchaser were done, except in regard to the points named in said section, wherein the deed should be presumptive evidence only.(McCready v Sexton,29 Iowa 359;Groesbech v. Seeley,13 Mich. 329;Case v. Dean,16 Mich. 13;White v. Flynn,23 Ind. 46;Smith v. Cleveland,17 Wis. 556;Allen v. Armstrong,16 Iowa 508;People v. Mitchell,45 Barb.[N. Y.], 212;Blackwell, Tax Titles, p. 98;Abbott v. Lindenbower,42 Mo. 162, 46 Mo. 291;Wantlan v. White,19 Ind. 470;Huntington v. Brantley, 33 Miss. 451.)

The tax deed is void because it does not contain a recital showing where the tax sale was had.(Haller v. Blaco,10 Neb. 36;Shelley v. Towle,16 Neb. 194;Baldwin v. Merriam,16 Neb. 199;Taylor v. Courtnay,15 Neb. 198;Towle v. Holt, 14 Neb. 227.)

"If a tax deed fails to show that it was made at the place required by law, it is void."(Howard v. Lamaster,11 Neb. 582.)

Saunders & Macfarland, contra:

In conformity with the well known principle that those matters over which the legislature has exclusive authority may be required or omitted at its pleasure, it must follow that if the legislature has power to require taxes for the previous year to be entered on the book of subsequent years or not at its discretion, then it has the right to make deeds conclusive evidence of that fact.(Black, TaxTitles, sec. 253.)

The mode of levying, assessing, and collecting taxes is entirely subject to the discretion of the legislature.(Smith v. Cleveland,17 Wis. 556.)

The manner of the listing and assessing, failure to make entries on proper book, or the failure to list or assess the property within the time provided by law are not jurisdictional matters, and are mere irregularities.(Sec. 142, ch. 77, Comp. Stats.)

A tax deed may be made conclusive evidence of the regularity of all proceedings, and of all matters except the facts of a levy, an assessment, or sale; and it may be conclusive evidence of the regularity of such levy, assessment, or sale.(2 Blackwell, TaxTitles, secs. 850, 851, 852, 853;Gould v. Thompson,45 Iowa 450;Callanan v. Hurley,93 U.S. 387;Shawler v. Johnson,52 Iowa 472;Phelps v. Meade,41 Iowa 473;Easton v. Perry,37 Iowa 681;Madson v. Sexton,37 Iowa 562;Clark v. Thompson,37 Iowa 536;Hurley v. Powell,31 Iowa 64;Leavitt v. Watson,37 Iowa 93;Martin v. Cole,38 Iowa 141;Robinson v. First Nat. Bank,48 Iowa 354;Jenkins v. McTigue,22 F. 148;Smith v. Cleveland, 17 Wis. 556.)

It is competent for the legislature to make tax deeds prima facie evidence of title in the holder, and to place the burden of proof upon the party attacking such title.(Delaplaine v. Cook,7 Wis. 44;Genther v. Fuller,36 Iowa 604;Turnny v. Yeoman,14 O., 207;Stanbery v. Sillon,13 O. St., 571;Hoffman v. Bell,61 Pa. St., 444;Hand v. Ballou,12 N.Y. 541;Pillow v. Roberts,13 How.[U. S.], 472;Keely v. Sanders,99 U.S. 441;De Treville v. Smalls,98 U.S. 517;Falkner v. Guild,10 Wis. 506;Stewart v. McSweeney,14 Wis. 507;Whitney v. Marshall,17 Wis. 181;Smith v. Cleveland, 17 Wis. 556.)

A person must be in the actual possession of the premises in order to entitle him to a notice to redeem; constructive possession is not sufficient.(Parker v. Cochran,64 Iowa 757;Tuttle v. Griffin,64 Iowa 455;Burdick v. Connell,69 Iowa 458.)

A comparison of the deed with the statute will show that the deed is in strict conformity with section 127, chapter 77, Compiled Statutes, and has been executed in the manner and form provided by law.The appellant contends that the county treasurer had no authority to provide himself with a seal; but under the statute the county treasurer had authority by implication to provide himself with one.(Hendrix v. Boggs,15 Neb. 472.)

If a form is given by statute and is followed, it must be held sufficient.(Cooley, Taxation [2d ed.], p. 515;Hubbell v. Campbell,56 Cal. 527;Grimm v. O'Connell,54 Cal. 522;Geekie v. Kirby Carpenter Co.,106 U.S. 379;Martin v. Garrett, 30 P. [Kan.], 168;Bell v. Gordon, 55 Miss. 45.)

Proceedings for the collection of delinquent taxes, and sale of the property by summary process, are not obnoxious to the constitutional provisions as to due process of law.(Pritchard v. Madren,4 Kan. 486;Murray v. Hoboken Land & ImprovementCo., 18 How.[U. S.], 272;McMillen v. Anderson,95 U.S. 37;Davidson v. City of New Orleans,96 U.S. 97;Springer v. United States,102 U.S. 586;Bennett v. Hunter, 9 Wall.[U. S.], 326;2 Desty, Taxation, pp. 749-753;Cooley, Taxation, p. 464;1 Blackwell, TaxTitles, sec. 75.)

OPINION

The opinion contains a statement of the case.

RAGAN, C.

During the year 1885, and until October 14, 1886, one Marcus P Mason owned lots 11 and 12 in block 4, Kilby Place, in the city of Omaha, Nebraska.On said last date Mason sold, and by warranty deed conveyed, said premises to Sophia F. Larson.These lots were assessed for taxes in the name of Mason for the year 1885, and on the 6th day of November, 1886, were sold at the county treasurer's public tax sale for the taxes of 1885, to one Dickey, who afterwards, on the 20th day of November, 1888, obtained a treasurer's tax deed for the property, based on the sale made thereof in 1886, for the delinquent taxes for the year 1885.This suit was brought in the district court of Douglas county, by Mrs. Sophia F. Larson against J. B. Dickey, the holder of the tax deed, and James M. Taylor, his lessee, for the purpose of canceling said tax deed.In her petition Mrs. Larson tendered Dickey the amount which he had paid for the tax title, together with interest and costs.Both parties submitted their title to the court.The court found and decreed that the tax deed was valid and divested Mrs. Larson of her title to the property.From this decree Mrs. Larson appeals to this court.

Section 86 of the revenue act of 1879, chapter 77, Compiled Statutes, 1893, provides: "In all cases where taxes are delinquent on any real property, for any preceding year, or years, it shall be the duty of the county clerk in making up the list for the current year, to enter the amount of the delinquent tax opposite the tract or parcel of real property against which it was charged, in a suitable column or columns, with the year or years in which the same was due, and the amount thereof shall be collected in like manner as tax for other real property of that year may be collected."

On the trial in the district court Mrs. Larson offered to prove by competent evidence that when the 1886 tax was extended against this property by the county clerk the delinquent taxes against the same for the year 1885, and for which it had been sold, were not carried forward on the tax list and entered as delinquent against the property with the taxes assessed thereon for the year 1886.The district court excluded this evidence on the theory, as appears from a copy of the court's opinion found in the brief of counsel for the appellant, that section 130 of this revenue law made the tax deed conclusive evidence that the requirement of said section 86 had been complied with.Said section 130 is in words and figures as follows:

"Sec 130.Deeds made by the county treasurer as aforesaid shall be presumptive evidence in all the courts of this state, in all controversies and suits in relation to the rights of the purchaser, his heirs or assigns, to the land thereby conveyed, of the following facts: 1.That the real property conveyed was subject to taxation for the year or years stated in the deed; 2.That the taxes were not paid at any time before the sale; 3.That the real property conveyed had not been redeemed from the sale at the date of the deed; 4.That the property had been listed and assessed; 5.That the taxes were levied according to law; 6.That the property was sold for taxes as stated in the deed; 7.That notice had been served and due publication had, as required in section 123 of this chapter, before the time of redemption had expired.And it shall be conclusive evidence of the following facts: 1.That the manner in which the listing, assessment, levy, and sale were conducted was in all respects as the law directed; 2.That the grantee named in the deed was the purchaser or his assignee; 3.That all the prerequisites of the law were complied...