Leigh v. Green
| Decision Date | 19 June 1901 |
| Docket Number | 9,838 |
| Citation | 86 N.W. 1093,62 Neb. 344 |
| Parties | ALVIN L. LEIGH, APPELLEE, v. H. S. GREEN, APPELLANT. [*] |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Knox county. Heard below before ROBINSON, J. Reversed.
REVERSED AND REMANDED.
Reed & Gross, James McCabe and W. R. Green, for appellant.
James C. Crawford, Clark C. McNish, Andrew R. Oleson, Anderson & Keefe and Woolworth & McHugh, contra.
ALBERT C. DUFFIE and AMES, CC., concur.
On the 24th day of November, 1880, Erwin Davis held the record title to certain lands in Knox county. On the date mentioned Algernon S. Patrick commenced an action in the district court of that county and procured an order of attachment to be levied on said land. On the 18th day of April, 1882, the case was removed to the United States circuit court, wherein a judgment was rendered in favor of the plaintiff on the 21st day of January, 1890, and an order made for the sale of the lands for the satisfaction thereof. In pursuance of said order, on the 15th day of May, 1894, the lands were sold to Lionel C. Burr by the United States marshal, whose deed to Burr therefor was filed for record in the office of the clerk of Knox county on the 26th day of May, 1894. On the day the deed was executed Burr conveyed the premises to J. C Crawford and R. C. Peters by warranty deed, which was recorded on the 28th day of May, 1894. On the 23d day of May, 1894, Crawford and Peters conveyed the land to Alvin L. Leigh, the plaintiff in this case. On the 28th day of December, 1882, and while said attachment proceedings were pending, a warranty deed to said lands, purporting to have been executed by Erwin Davis to Henry A. Root on the 8th day of October, 1880, was filed for record in the office of the county clerk of Knox county. On the 12th day of May, 1894, in an action pending in the district court of Douglas county, wherein Algernon S. Patrick was plaintiff and Erwin Davis, Henry A. Root, J. N. H. Patrick and J. M. Woolworth were defendants, a decree was entered whereby the said deed from Davis to Root was canceled and set aside as fraudulent and void, as against the plaintiff in that case, and whereby the title to said land was quieted and confirmed in said plaintiff as against said Root. In 1891, several actions were brought in the district court for Knox county, wherein the Farmers Loan & Trust Company was plaintiff and Henry A. Root and different subdivisions of the land in controversy were defendants, for the foreclosure of certain tax liens, which actions so taken together involved the title to the land in controversy in this suit. In the same year a decree of foreclosure was entered in each case, and an order made directing the sale of said subdivisions, respectively, for the satisfaction of the amount found due by the respective decrees. In pursuance of these several decrees and orders the lands were sold by the sheriff of that county to H. S. Green, the defendant in the present action, and deeds of conveyance therefor were duly executed and delivered to said purchaser by the sheriff. The plaintiff in the present case claims title to the lands, basing his claim of title on the attachment proceedings hereinbefore mentioned; the defendant also claims title thereto, basing his claim of title on the proceedings had for the foreclosure of the tax liens. The present action was brought by the plaintiff, Alvin L. Leigh, against the defendant, H. S. Green, to quiet his title to the land in controversy. From a decree in favor of the plaintiff the defendant prosecutes an appeal to this court.
From the foregoing statement it will be seen that both parties trace their title to Erwin Davis. The sole question to be determined in this case is whether the plaintiff is concluded by the proceedings had in the district court of Knox county for the foreclosure of the tax liens, by virtue of which the defendant claims title to the lands in controversy. The plaintiff assails those proceedings upon three grounds: (1) That the service was had by publication, and the affidavits therefor were not sufficient to authorize service by publication; (2) that there was no case made for proceedings against the land in any of said foreclosure proceedings, without impleading Algernon S. Patrick, who at the time said proceedings were brought had an attachment lien on the lands for the satisfaction of which the land afterwards sold; (3) that the proceedings to foreclose said liens were had during the time the land in controversy was under attachment in an action pending in the circuit court of the United States, and for that reason the proceedings to foreclose the tax liens were void.
The actions for the foreclosure of the tax liens were brought under article 5 of chapter 77 of the Compiled Statutes. Section 4 of that article is as follows: "Service of process in causes instituted under this chapter shall be the same as provided by law in similar causes in the district courts, and where the owner of the land is not known, the action may be brought against the land itself, but in such case the service must be as in the case of a nonresident; if the action is commenced against a person who disclaims the land, the land itself may be substituted by order of court for the defendant, and the action continued for publication." In each of the foreclosure cases, the subdivision of the land to be affected thereby was made a party as provided by the section just quoted, and service was had by publication. The affidavit in each case, except as to the land described, which varied according to the subdivision made a party, was as follows:
"In the District Court of Knox County, Nebraska.
FARMERS LOAN & TRUST COMPANY vs. HENRY A. ROOT AND N. E. 1/4, SEC. 27, TWP. 31, RANGE 3 WEST 6TH P. M. Affidavit for Publication of Notice.
[SEAL.] "Notary Public."
The plaintiff insists that the affidavits were insufficient, and for that reason the court acquired no jurisdiction.
One objection urged against the affidavits is that they were sworn to some two days before the petitions were filed in the respective cases. The argument on this point, as we understand it, is that between the making of the affidavit and the filing of the petition conditions might have changed so that service might have been had on the defendant in this state, or in some other way, so that the affidavit could not have been truthfully made at the time of filing. It is clear that the law must permit some interval to elapse between the making and the filing of the affidavit, because, strictly speaking, the two acts could not be simultaneous. That being true, the only question that can arise is what length of time it will permit to elapse between the two acts. The statute is silent on the subject; hence the inference is warranted that it will permit a reasonable time. Just what will be regarded as a reasonable time this court has not decided. However, in Armstrong v. Middlestadt, 22 Neb. 711, 36 N.W. 151, it was held that an affidavit made one day before the petition was filed was sufficient. But in that case the court expressly disclaims any intention to go beyond the facts, and, of holding that an affidavit made several days before the commencement of the action would be sufficient. In our opinion, when the petition is filed within such time after making the affidavit that no presumption could fairly arise that the state of facts had changed in the interval, it is sufficient. Crombie v. Little, 47 Minn. 581, 50 N.W. 823; Snell v. Meservy, 91 Iowa 322, 59 N.W. 32. Applying this rule to the affidavits in question, we do not believe that any presumption of a change in the state of facts, during an interval of two days, could fairly arise.
Another objection urged against the affidavits is that they are sworn to upon information and belief. The affidavits contain the positive statements of the affiant which are followed by these words: "All of which I verily believe to be true." We do not believe the objection is well taken. Among other things, the affidavit must show that service can not be had on the defendant in this state. In the very nature of things, upon this point, at least, the affiant, whatever the wording of the affidavit, can never have positive knowledge. That he makes such statement upon information and belief, is a necessary implication. To expressly state that which, in the absence of such statement, would be necessarily implied, affects only the form and not the substance of the affidavit. Colton v. Rupert, 60 Mich. 318, 27 N.W 520; Pratt v. Stevens, 94 N.Y. 387; Belmont v. Cornen, 82 N.Y. 256; Howe Machine Co. v. Pettibone, 74 N.Y. 68. In Kansas such an affidavit has been held defective, but not void. Harrison v. Beard, 30 Kan. 532, 2 P. 632. In our opinion, an affidavit for service by publication, sworn to upon information and belief, is...
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