Lothrop v. Michelson

• Decision Date: 05 April 1895
• Citation: 63 N.W. 28,44 Neb. 633
• Parties: LOTHROP v. MICHELSON.
• Court: Nebraska Supreme Court

44 Neb. 633

63 N.W. 28

LOTHROP

v.MICHELSON.

Supreme Court of Nebraska.

April 5, 1895.

Syllabus by the Court.

1. Objections to the report of appraisers, made under the provisions of the occupying claimant's act, should be filed on or before the second day of the term of the district court next after the filing of the appraisement with the clerk of the court, where such report is made and filed in vacation.

2. The court may permit such objections to be filed out of time, but it is not reversible error to refuse so to do where no abuse of discretion is shown.

3. The appraisers appointed under said law are required to make their appraisement from a view of the premises. They have no authority to take the testimony of witnesses.

4. Where an occupying claimant is allowed for valuable and lasting improvements made while in possession, the measure of his recovery is the amount the real estate increased in value by reason of such improvements, and not the cost of making the same. Fletcher v. Brown, 53 N. W. 577, 35 Neb. 660.

5. The statute of limitations relating to the foreclosure of tax liens is no bar to the recovery of taxes under the provisions of the occupying claimant's act.

Appeal from district court, Washington county; Scott, Judge.

Action of ejectment by Hortense Lothrop against Anton Michelson. Judgment for defendant for improvements, and plaintiff appeals. Affirmed.John Lothrop, for appellant.

Jesse T. Davis, for appellee.

NORVAL, C. J.

The appellant brought an action of ejectment in the district court of Washington county against the appellee to recover possession of certain real estate situate in said county. The answer denies the title of the plaintiff, and sets up title to the premises in the defendant under a tax deed. The answer further alleges that the defendant, while in possession of the real estate, has paid certain taxes thereon, and made valuable and permanent improvements upon the land. The defendant prays, in case a judgment of ejection is entered against him, that he recover, under the provisions of the occupying claimant's law, for the said improvements and taxes. The case was tried to a jury at the September, 1891, term of the district court, who found the plaintiff to be the owner and entitled to the possession of the premises, and judgment was rendered upon the verdict. Subsequently the parties entered into and filed a written stipulation to the effect that the defendant was an occupying claimant, under the statutes of this state, and that the Honorable Herbert J. Davis, one of the judges of said district court, should make an order for the appointment of appraisers to ascertain the value of the permanent improvements made by the defendant, as well as the rents and profits of said land. The order was made in accordance with the stipulation. The appraisers were appointed, who subsequently made their report in writing. This report was, on motion of the plaintiff, set aside, on account of the failure of the appraisers to take and subscribe the oath required by statute. An order was issued to summons new appraisers; and the sheriff, in accordance with the command thereof, selected three disinterested freeholders of the county, who, after qualifying, made and filed their report in writing, in vacation, and within the time required by the court, with the clerk of the district court, to wit, on the 2d day of January, 1892. The referees found the value of the premises at the time the defendant went into possession thereof in the sum of $100, total rents and profits to be the sum of $90, and the total value of the lasting and valuable improvements made by the defendant while in possession to be $715.20. The appraisement itemizes the various improvements, and the value of each is assessed. The fifth item is as follows: “(5) We find that the defendant has grubbed and cleared ten acres of said land, which we assess of the cash value of $100.”

On the 1st day of the February, 1892, term of the district court, to wit, on February 29th, the defendant filed a motion to confirm said report of the appraisers; and on the 2d day of March, 1892, the plaintiff filed a motion to be permitted to file exceptions to said report, which last motion was denied on March 9th, and the following decree was entered upon the journal in said cause: “And now, on this 9th day of March, 1892, this cause came on to be heard upon the report of the appraisers heretofore selected by the sheriff of Washington county, Nebraska, under the order of this court, to appraise the valuable and lasting improvements made thereon by the occupying claimant, Anton Michelson, on the south half of the northeast quarter of section 22, township 18, range 12 east of the 6th P. M., which report is in words and figures as follows: * * * and, no objections having been filed to the report of said appraisers, that the said report was made within the time required under the order of this court, and the written instructions given to said appraisers by the court. The court finds that the same is reasonable and fair, and that no injustice has been done either party, except item 5 in said appraisers' report, which is, by consent of the occupying claimant, disallowed and stricken out by the court; the amount found due by the appraisers, after deducting the amount of rent of said premises and the amount stricken out by the court, to be the sum of $525.20. And thereupon this cause came on further to be heard upon the amount paid as taxes by the occupying claimant, and, after hearing the proofs, the court finds that the occupying claimant has paid taxes, including interest at the rate of ten per cent. per annum, from the dates of the payment of each item of taxes paid by him on said premises, to be the sum...