Ludden v. Hansen

• Decision Date: 17 March 1885
• Parties: SYLVANUS LUDDEN, PLAINTIFF IN ERROR, v. HARRY B. HANSEN, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

22 N.W. 766

17 Neb. 354

SYLVANUS LUDDEN, PLAINTIFF IN ERROR, v. HARRY B. HANSEN, DEFENDANT IN ERROR

Supreme Court of Nebraska

March 17, 1885

ERROR to the district court for Jefferson county. Tried below before MORRIS, J.

AFFIRMED.

B. S Baker, for plaintiff in error.

C. B Letton, for defendant in error.

OPINION

COBB CH. J.

This was an action of ejectment brought by the defendant in error against the plaintiff in error for the possession of the eighty acre tract of land described in the pleadings. The petition was in the usual form. The defendant in said action answered by a general denial.

There was a trial to the court, a jury being waived, and a finding and judgment for the plaintiff.

A motion for a new trial having been overruled the cause is brought to this court on error.

The errors assigned are:

1. That the court erred in not admitting the tax deed between the state of Nebraska by Andrew W. Showalter, treasurer of Jefferson county, of the first part, and S.D. Ludden, of the second part.

2. The court erred in not admitting the county treasurer's certificate of tax sale of said Jefferson county, issued by the treasurer of said county, and in favor of A. H. Miller, and properly endorsed.

3. The court erred in not admitting the evidence of G. H. Turner, treasurer of said Jefferson county, for the purpose of showing that a deed was duly demanded on said certificate of tax sale of the land in controversy.

4. The court erred in overruling the motion for a new trial.

It appears from the bill of exceptions that after the plaintiff had introduced his evidence and rested, the defendant offered in evidence a tax deed for the land in controversy, to the introduction of which the plaintiff objected, for the reason that the place of the sale of the land for taxes was not shown by the deed, and also for the further reason that the said deed did not show on its face that the land in controversy had been offered for sale at public sale and not sold for want of bidders, which objections were sustained by the court and the said deed excluded. From a copy of the deed preserved in the bill of exceptions it appears that it purports to have been executed on a private sale made on the 10th day of September, 1873. The deed does not state at what place the sale was made, the blank in the printed form evidently intended to be filled up with the place of sale being left blank. Nor does it contain the statement that the land had been previously offered at public sale and not sold for want of bidders. In the case of Haller v. Blaco, 10 Neb. 36, 4 N.W. 362, the majority of this court held that a deed purporting to have been made on a public sale of land for taxes, which failed to state the place at which the sale was made, was properly excluded. I do not think that the reason of that decision would apply to a case of lands sold at private sale. I think that when it is shown to have become the duty of the county treasurer to sell lands for taxes at private sale, and he is shown to have made such sale, a presumption of law arises that such sale has been made at his office, where the law requires him to make it. But, as was held by this...