Larson v. Dickey

• Citation: 39 Neb. 463,58 N.W. 167
• Parties: LARSON v. DICKEY ET AL.
• Decision Date: 20 February 1894
• Court: Supreme Court of Nebraska

39 Neb. 463

58 N.W. 167

LARSON

v.DICKEY ET AL.

Supreme Court of Nebraska.

Feb. 20, 1894.

Syllabus by the Court.

1. The legislature has the power to make a tax deed prima facie evidence that every requirement of the law necessary to its validity has been complied with.

2. The legislature has the power to make a tax deed conclusive evidence of compliance with all the requirements of the law which are merely directory, and which pertain to the regulation or manner of the exercise of the taxing power, and which requirements it might, in the exercise of its discretion, dispense with entirely.

3. The legislature has no power to make a tax deed conclusive evidence of any jurisdictional fact, or fact vital to the exercise of the power of taxation or sale, divesting the title of the citizen's property for nonpayment of taxes.

4. The constitution of this state has not committed to the legislature the power of conclusively determining what facts are jurisdictional or vital to the exercise of the power of taxation or sale, divesting the title of the citizen's property for nonpayment of taxes. Such determination belongs to the judiciary.

5. There is no such thing as a county treasurer's official seal of office provided for or recognized by the laws of this state, and, until the legislature shall provide an official seal for county treasurers, no tax deed of any validity can be executed under the present revenue laws.

6. The legislature has no power to make a tax deed conclusive evidence that the grantee named therein was the purchaser or assignee of the purchaser at the sale for taxes on which said deed is predicated.

Appeal from district court, Douglas county; Eleazer Wakeley, Judge.

Action by Sophia F. Larson against J. B. Dickey and another to cancel a tax deed. There was decree for defendants, and plaintiff appeals. Reversed.J. B. Meikle and George W. Covell, for appellant.

Saunders & Macfarland, for appellees.

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, Neb. 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 to 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, which 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, Comp. St. 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 taxes 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 it 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 of 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 with by all the officers who had, or whose duty it was to have had, any part or action in any transaction relating to or affecting the title conveyed, or purporting to be conveyed by the deed, from the listing and valuation of the property up to the execution of the deed, both 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 this section, wherein the deed shall be presumptive evidence only. And in all controversies and suits involving the title to real property claimed and held under and by virtue of a deed made substantially as aforesaid by the treasurer, the person claiming title adverse to the title conveyed by such deed shall be required to prove, in order to defeat the said title either that the said real property was not subject to taxation for the year or years named in the deed, that the taxes had been paid before the sale, that the property had been redeemed from the sale according to the provisions of this chapter, that such redemption was had or made for the use and benefit of persons having the right of redemption under the laws of this state, or that there had been an entire omission to list or assess the property, or to levy the taxes, or to sell the property; but no person shall be permitted to question the title acquired by a treasurer's deed without first showing that he, or the person under whom he claims title, had title to the property at the time of the sale or that the title was obtained from the United States or this state after the sale, and that all taxes due upon the property have been paid by such person or the person under whom he claims title as aforesaid; provided, that in any case where a person has paid his taxes, and through mistake in the entry made in the treasurer's books or in the receipt, the land upon which the taxes were paid was afterwards sold, the treasurer's deed shall not convey the title; provided further, that in all cases where the owner of lands sold for taxes shall resist the validity of such tax title, such owner may prove fraud committed by the officer selling the same or in the purchaser to defeat the same, and if fraud is so established such sale and title shall be void.” The learned judge of the district court was right in holding that this section made the tax deed conclusive evidence. But is this section 130 constitutional in so far as it makes the tax deed conclusive evidence that the thing was done which it is here sought to prove, and, as a matter of fact, was not done?

At common law it was necessary that one who claimed to have obtained title to property of another, under proceedings based upon a neglect of public duty, should take upon himself the burden of showing that the law had been complied with by those who had had the proceedings in charge; especially if the proceedings would operate with severity, and be in their effects something in the nature of a forfeiture. The law was strict in its requirements that his evidence should exhibit the proceedings from step to step, and show that each of the safeguards with which the statute had surrounded the delinquent for his protection in this very emergency had been duly observed. This rule of the common law has not been modified by the decisions, and is still recognized and enforced where statutes have not changed it. Cooley, Tax'n, p. 326. It will be observed that this section 130 of our revenue law makes the tax deed prima facie evidence that certain requirements of the revenue law leading up to the sale of property for taxes have been complied with, thus casting the burden on the one assailing the validity of a tax deed of showing that such requirements had not been complied with; and said section 130 also makes the tax deed conclusive evidence that every fact existed, that everything had been done, and every requirement of the law complied with, necessary to the validity of the deed, except those requirements whose performance are made prima facie evidence. It is said by counsel for appellant that this section 130 is repugnant to the constitution, in that, in making the tax deed conclusive evidence of certain matters, it deprives the citizen of his property without due process of law. The question is an intensely interesting one, and we have tried...