Leavitt v. Bell

• Decision Date: 04 May 1898
• Citation: 55 Neb. 57,75 N.W. 524
• Parties: LEAVITT v. BELL ET AL.
• Court: Nebraska Supreme Court

55 Neb. 57

75 N.W. 524

LEAVITT

v.BELL ET AL.

Supreme Court of Nebraska.

May 4, 1898.

Syllabus by the Court.

1. The fact that one is an infant, idiot, or insane person does not prevent his being sued either at law or in equity.

2. Section 119, c. 77, Comp. St. 1897, does not forbid the owner of a real-estate tax-sale certificate from maintaining an action to foreclose the same, although the owner of the real estate may be an infant, idiot, or insane person.

3. The equitable owner and holder of a real-estate tax-sale certificate may maintain an action in his own name to foreclose the same, although it has never been formally indorsed by the original purchaser at the tax sale, in accordance with the provisions of section 117, c. 77, Comp. St. 1897.

4. In the absence of a contrary intent inferable therefrom, a quitclaim deed for real estate passes all the interest the grantor has in such real estate at the date of the delivery of such deed.

5. Such a deed is sufficient to vest in the grantee the equitable title to a tax-sale certificate of the real estate owned by the grantor.

6. Section 69, c. 12a, Comp. St. 1887, construed, and held, that the presenting to a metropolitan city council of such a petition as the one required by said section is a jurisdictional prerequisite to authorize it to charge by ordinance the cost of paving streets to the property abutting thereon.

7. Certain special paving taxes, levied on the property in controversy by ordinance passed by the mayor and council of the city of Omaha, held void because the paving of the streets was not petitioned for in accordance with the provisions of said section 69.

8. Where a lien is sought to be enforced for general taxes, the presumption is that the statutes in reference to the levy and assessment of the taxes, and the sale of the real estate for their nonpayment, has been complied with, and the burden of showing irregularities, or that the tax sale is void, is upon the party asserting such fact.

9. But no such presumption can be indulged when a lien is sought to be enforced against real estate for a sale made thereof for the nonpayment of special taxes. In such a case, he who asserts the lien, and seeks to enforce it, has the burden of showing the validity of the tax lien. Smith v. City of Omaha, 69 N. W. 402, 49 Neb. 883, followed.

10. A metropolitan city council has no jurisdiction to pass an ordinance levying special taxes against real estate until, sitting as a board of equalization, it has first determined the amount of such special taxes to be assessed against such real estate as benefits.

11. And such a board of equalization has no jurisdiction to determine and fix the benefits to be levied as special taxes against real estate until it has given notice of its sitting, as such board of equalization, “for at least six days prior thereto,” by publication in the official paper of the city. Comp. St. 1887, c. 12a, §§ 73, 85.

12. Where such a board of equalization convenes on the 28th of the month, in pursuance of a notice published on the 23d of the month, it is without jurisdiction to act, and its proceedings are void.

13. The phrase, “for at least six days prior,” found in said section 85, is not complied with by publishing a notice once in the official paper of the city six days before the council convenes as a board of equalization.

14. A mortgagee of real estate, foreclosing his mortgage, is entitled to have the amount of all valid tax liens owned by him, and taxes paid to protect the same, included in the mortgage foreclosure decree.

Appeal from district court, Douglas county; Keysor, Judge.

Suit by Isaac S. Leavitt against Ellen E. J. Bell and others to foreclose tax liens. From the decree rendered, defendants appeal. Reversed.

Irvine, C., dissenting.

Howard B. Smith, for appellants.

Wm. D. Beckett, for appellee.

RAGAN, C.

Isaac S. Leavitt brought this suit against Ellen E. J. Bell, Josephine and Cyril J. Bell, the heirs at law of Joseph Bell, deceased, to the district court of Douglas county, to foreclose certain tax liens upon lots 3, 4, 6, 8, 10, 13, and 14, in Jacob's addition to the city of Omaha, of which said Joseph Bell died seised. George D. Cooke was made a party defendant to the action, and before the return day of the summons issued for him at the commencement of the action he filed an answer in the nature of a cross petition, setting out that he had a mortgage upon the real estate, made by Joseph Bell, deceased, and asking to have it foreclosed. Howard B. Smith, an attorney at law, was by the court appointed guardian ad litem for Josephine and Cyril J. Bell, minors. While the action was pending, Leavitt, by quitclaim deed, transferred his interest in the real estate in controversy, by virtue of his tax-sale certificates, to one Byron R. Hastings, and he subsequently transferred his interest in the real estate, by virtue of the certificates of tax sales, by quitclaim deed to Cooke, who thereupon filed a supplemental petition, alleging, in effect, that he had purchased these tax-sale certificates formerly held by Leavitt, and all his liens on the real estate in controversy, by virtue of such tax-sale certificates, including the taxes which he had subsequently paid to protect his liens, and that he had done this in order to protect the lien of his mortgage upon said real estate. The answer of the widow and her minor children, by their guardian ad litem, put in issue the validity and legality of the tax levies and assessments upon which the tax certificates were based, and the levy and assessment of the taxes subsequently paid to protect the liens of those certificates. The court entered a decree giving Cooke two liens upon the premises: A first lien for the taxes for which the property had been originally sold, and the taxes subsequently paid to protect such sale, and provided in the decree that the minor children of Joseph Bell might redeem the real estate from this tax lien at any time within two years after they became of age. The second lien awarded Cooke was for the amount due him upon his mortgage. From this decree both parties have appealed.

1. The appeal of the Bells: The first argument is that since the constitution (section 3, art. 9) gives to the owners of real estate the right to redeem the same from all sales made thereof for the nonpayment of taxes or special assessments at any time within two years after such sales; that since section 119, c. 77, Comp. St. 1887 (being section 119, c. 77, art. 1, Comp. St. 1897), provides that infants, idiots, and insane persons may redeem any real estate belonging to them, which has been sold for taxes, at any time within two years after their disability has been removed,--therefore this action cannot be maintained to foreclose these tax liens against that part of the real estate owned by the minor children until they become of age. We have not been cited to any authority in support of this contention, nor have we been able to find one. Taxes upon real estate are by the statute made a perpetual lien thereon, and, when the real estate has been sold for nonpayment of the taxes, the purchaser is, by the statute, given the right to bring a suit to foreclose his tax lien, and have the real estate sold for the purpose of repaying him the amount paid at the sale, with interest and subsequent taxes paid to protect his lien. It may be--we do not decide--that where the real estate of an infant, idiot, or insane person, during his disability, is sold under a decree to satisfy a lien thereon for taxes, such a person, within two years after the removal of his disability, may redeem the real estate; but we do not understand that the fact that one is an infant, idiot, or insane person prevents his being sued, either at law or in equity.

2. A second argument is that Hastings did not acquire the title and the right to foreclose the certificates of tax sales owned by Leavitt by virtue of the quitclaim deed from the latter, and that Cooke did not acquire the title and the right to foreclose the Leavitt certificates of tax sales by the quitclaim deed from Hastings. This argument is based on counsel's construction of section 117, c. 77, Comp. St. 1897, which provides that a tax-sale certificate shall be assignable by indorsement, and that an assignment thereof shall vest in the assignee or his legal representative all the right and title of the original purchaser. The contention of counsel is that the only method by which Cooke could acquire a title to the Leavitt certificates of tax sales was by an indorsement thereof in writing by Leavitt. It may be, and probably is, true that, in order for the holder of a certificate of tax sale to vest the legal title of the same in his vendee, it should be indorsed in the same manner as a promissory note payable to order. But we do not understand the meaning of the statute to be that, unless a certificate of tax sale is thus indorsed, one who purchases and pays for such a certificate fails to acquire any title thereto or the right to enforce it. One who has purchased and paid for, and has in his possession, a negotiable promissory note payable to order of his vendor, has such an equitable title to the same that he may maintain a suit at law or in equity to enforce its collection. Bank v. Line, 50 Neb. 434, 69 N. W. 966;Hartzell v. McClurg, 53 Neb. ___, 74 N. W. 625. Leavitt did not transfer his certificates of tax sales to Hastings by indorsing them, but for a valuable consideration he sold and delivered them to him, and then duly executed to him a quitclaim deed, in and by which he remised, released, and forever quitclaimed unto Hastings the real estate in controversy, together with all the estate, right, title, interest, claim, and demand which he (Leavitt) had therein. Hastings did not indorse the tax certificates to Cooke, but for a valuable consideration sold and delivered them to him, and at the same time duly executed and delivered to him...