Levy v. Cunningham

• Citation: 56 Neb. 348,76 N.W. 882
• Parties: LEVY ET AL. v. CUNNINGHAM ET AL.
• Decision Date: 20 October 1898
• Court: Nebraska Supreme Court

56 Neb. 348

76 N.W. 882

LEVY ET AL.

v.CUNNINGHAM ET AL.

Supreme Court of Nebraska.

Oct. 20, 1898.

Syllabus by the Court.

1. That the plaintiffs were not the owners of the claim on which the action was predicated, and were not the real parties in interest, were proper matters of defense in the case at bar.

2. The instrument introduced to show the authority of a party to sign another's name held to be restricted to signatures of the latter, as officer of a company, when necessary in the transaction of its business, and not applicable to his individual affairs.

3. The offer and reception in evidence of certificates of purchases at tax sales do not include and make of evidence indorsements of assignments thereon, unless the offer was broad enough for such purpose.

4. It is error to give instructions which treat as established a disputed fact, as to which there is a conflict in the evidence.

5. An instruction in which it is attempted to include all the elements of the issues necessary to a finding for one of the parties to a suit, and from which is omitted a material element, is erroneous, and, if given, may furnish cause for reversal of a resultant judgment.

Error to district court, Adams county; Beall, Judge.

Action by George W. Cunningham and another against Mark Levy and others. From a judgment for plaintiffs, defendants bring error. Reversed.A. H. Bowen and J. B. Cessna, for plaintiffs in error.

Tibbets Bros., Morey & Ferris, and Batty, Dungan & Burton, for defendants in error.

HARRISON, C. J.

In this action, commenced in the district court of Adams county, in the petition filed it was of the matters alleged that during the year 1891, and for a term which had its inception during 1890 and extended to 1892, Charles H. Paul was treasurer of Adams county, and the other parties named as defendants were his sureties on his bond as such treasurer; also that: “On the 13th day of November, 1891, one James L. Britton, being then the owner of the legal title to the same, sent to said Adams county treasurer, Charles H. Paul, the following tax certificates, among others, to wit, Nos. 684, 685, 868, 869, 990, 991, 1,018, 1,026, 1,027, 1,032, 1,070, 1,119, 1,120, 1,121, 1,132. The lands represented by said certificates were purchased by said James L. Britton at the tax sale of 1889, held by the said Charles H. Paul, treasurer of Adams county, Neb., and said certificates were received from the said treasurer, Charles H. Paul, by the said James L. Britton; and each of the said certificates bears date the 8th day of November, 1889; and plaintiffs allege that said tax certificates were sent by the said James L. Britton to the said Charles H. Paul, treasurer, some time in the month of November, 1891, and were received by the said Charles H. Paul, treasurer, prior to, and not later than, the 25th day of November, 1891, and said certificates were so sent to the said treasurer, together with other certificates, in pursuance of an arrangement, understanding, and custom by which certificates were to be sent on for a remittance of all redemption moneys paid in thereon, or for the issuance of tax deeds, as the case might be.” It was further pleaded that prior to the time the certificates were forwarded to the treasurer redemption had been made of the real estate described therein, and the money was in the hands of the treasurer for the owner of the certificates; that the treasurer failed and refused to pay the said money to James L. Britton, and did not account to his successor in office for the same. It was further stated that: “On the 5th day of December, 1893, the said James L. Britton sold, transferred, and assigned all his right, title, and interest in and to the above-described certificates, redemption money, and costs, and his rights thereunder, to the plaintiff George W. Cunningham, for the use and benefit of the plaintiff the National Bond & Debenture Company, and the said plaintiff George W. Cunningham now holds the legal title to the same, for and on behalf of said National Bond & Debenture Company. Plaintiffs allege that not less than thirty days subsequent to said assignment the said James L. Britton departed this life.” The answers of the defendants, now plaintiffs in error, put in issue the parties petitioners' ownership of the certificates, and their right as real parties in interest to maintain the action. A trial resulted in a verdict and judgment for the complainants, and the unsuccessful parties have prosecuted error proceedings.

It was assigned specifically that the trial court erred in giving to the jury paragraphs numbered 2, 3, 4, and 8 of the charge. They read as follows:

“(2) The jury are instructed that, when redemption money is paid to a county treasurer or his deputy, such moneys are held by the treasurer subject to the order of the holder of the tax certificates in redemption of which said moneys are paid, and, if the treasurer fails to pay over such moneys on demand, then the treasurer and the sureties on his official bond become absolutely liable therefor to the owner of the tax certificates so redeemed. If, therefore, you find from the evidence that the redemption money in controversy was paid to Charles H. Paul, treasurer, or to his deputy, and that a demand was made for said money by the owner of the tax certificates, his agent or attorney, and that said Charles H. Paul never paid or remitted said money to the owner of said tax certificates, his agent or attorney, then your verdict must be against said Charles H. Paul and the sureties on his official bond.

(3) The jury are instructed that section 119, c. 77, art. 1, Comp. St., provides that, when redemption money is paid to a county treasurer, the said treasurer may charge a fee of 25 cents, and shall hold the redemption money paid subject to the order of the purchaser, his agent or attorney. Under this statute, it is the duty of the treasurer to remit or pay over such redemption money upon demand being made therefor, either by mail or otherwise, by the owner of the tax certificates, his agent or attorney. The statute makes the treasurer the agent or trustee of the owner of the tax certificates, so far as holding or paying over money is concerned, and the treasurer has no right or authority, under the statute, to make any charge to the owner of the tax certificates for holding or paying over such money. The law provides for the compensation of the county treasurer, and he is not permitted to make any extra charge to the owner of tax certificates for performing his duty. If, therefore, you find from the evidence that the redemption money in controversy was paid over to Charles H. Paul, county treasurer, or to his deputy, and a demand was made therefor of Charles H. Paul, treasurer, by the owner of the tax certificates, or his agent or attorney, and such money was not paid to said owner of tax certificates, or his agent or attorney, then you should find for the plaintiffs.

(4) The jury are instructed that, where the law makes a public officer an agent or trustee for a certain purpose, such officer cannot, by constituting, or attempting to constitute, himself a private agent for that purpose, evade or avoid liability, either for himself or his...