Martin v. Kearney Cnty.

• Decision Date: 18 September 1901
• Citation: 62 Neb. 538,87 N.W. 351
• Parties: MARTIN v. KEARNEY COUNTY ET AL.
• Court: Nebraska Supreme Court

62 Neb. 538

87 N.W. 351

MARTIN

v.KEARNEY COUNTY ET AL.

Supreme Court of Nebraska.

Sept. 18, 1901.

Syllabus by the Court.

1. Alleged errors not argued in brief of counsel for plaintiff in error may be deemed to have been waived.

2. Cities of the second class of less than 5,000 population, empowered by law to levy taxes for municipal purposes, cannot be required

to refund money received for illegal taxes imposed by such city from a purchaser of real estate at a sale made thereof by the county treasurer for delinquent taxes, in the absence of statutory authority providing for the refunding of such taxes. McCague v. City of Omaha, 78 N. W. 463, 58 Neb. 37, followed.

3. The purchaser of real estate at delinquent tax sale is a volunteer, and subject, ordinarily, to the rules applicable to voluntary payment of taxes.

4. The rule of caveat emptor applies to the purchaser of real-estate tax sales. McCague v. City of Omaha, supra.

5. A purchaser of real estate at delinquent tax sale is charged with notice of the public records showing the manner in which taxes for municipal purposes charged against the real estate purchased were levied by the city authorities empowered by law to levy such taxes.

6. Irregular action by a city council in making a levy of taxes for municipal purposes, resulting in the levy being declared illegal and void, is not “a mistake or wrongful act of the county treasurer or other officer,” within the meaning of section 131, art. 1, c. 77, Comp. St., for which the county can be held liable to refund to a purchaser at delinquent tax sale the illegal taxes so attempted to be levied.

7. A party, to recover, under the provisions of a statute, illegal taxes paid, must bring himself within its terms.

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

Action by James A. Martin against Kearney county and the city of Minden. Judgment for defendants, and plaintiff brings error. Affirmed.

J. L. McPheeley and J. B. Scott, for plaintiff in error.

E. C. Dailey and L. W. Hague, for defendants in error.

HOLCOMB, J.

The plaintiff in error (plaintiff below) became the purchaser of certain real estate situated in Minden, Kearney county, which was sold for delinquent taxes assessed against said property. After the expiration of the time for redemption from tax sale, he began proceedings in equity for the foreclosure of the lien in his favor by virtue of the tax-sale certificates and the subsequent taxes paid thereunder. Upon trial in the district court on the issues raised by the pleadings, it was determined that of the taxes for which plaintiff claimed a lien on the real estate purchased those levied by the city of Minden for certain municipal purposes were void, and of no validity as a lien on the land, because of irregularities, and failure to comply with the provisions of the law authorizing the levy attempted to be made by the city authorities. From the judgment rendered in the equity action to foreclose the tax lien, no appeal was taken, and the adjudication thereupon became final. The plaintiff, after the rendition of the decree in the foreclosure suit wherein the city taxes mentioned were adjudged to be void, presented his duly-verified claim to the board of county commissioners of Kearney county for the amount of the taxes thus declared to be void which had been paid by him at the time of the purchase of the land at delinquent tax sale, together with the interest thereon which he would have received had the tax levy been valid. The claim was rejected, and an appeal taken to the district court, where issues were joined, and a trial had to the court, which resulted in a finding and judgment in favor of the county, from which judgment the plaintiff prosecutes error proceedings in this court.

In the district court the city of Minden was also made a party defendant, the judgment rendered being in its favor also, as well as in favor of the county. The city of Minden is a city of the second class of less than 5,000 population. The alleged irregularity avoiding the tax involved in this litigation consisted in the city council undertaking to levy a tax for certain municipal purposes by a resolution adopted by that body, instead of duly enacting an ordinance providing for the levy, as provided by law. It seems to have been the contention of the plaintiff that by bringing in the city as a party defendant he would be entitled, on the facts stated, to a recovery of judgment for the amount of the void tax and interest either against the county or the city; that one or the other should be adjudged liable to reimburse him for the amount of the void tax paid, with interest. In the argument in the brief of plaintiff in this court no claim is made as to any right of recovery against the city, and any question as to the city's liability may, therefore, under the rule of this court, be deemed to have been waived. Gulick v. Webb, 41 Neb. 706, 60 N. W. 13. That the city cannot be held, we think, is settled by former decisions of this court on a like question. In McCague v. City of Omaha, 58 Neb. 37, 78 N. W. 463, it was announced as a rule of law in this state that: “In absence of statutory authority, a city of the metropolitan class cannot be required to refund money received from a purchaser of real estate at a sale made thereof by the county treasurer for illegal special assessments or taxes imposed by the city,”--following Pennock v. Douglas Co., 39 Neb. 293, 58 N. W. 117, 27 L. R. A. 121, 42 Am. St. Rep. 579, and Merrill v. City of Omaha, 39 Neb. 304, 58 N. W. 121. On principle the rule applies with equal force and for the same reasons to cities of the class or grade as the defendant city in the case at bar, and a recovery against it by the plaintiff could not be had without violating and overturning the rule already announced when applied to cities of the metropolitan class. The foregoing remarks as to the possible liability of the defendant city we regard as effectually disposing of the case so far as it is concerned.

This brings us to a consideration of the case as affecting the liability of the county under the issues raised by the pleadings and as presented by the arguments of counsel in their briefs. It is contended that, becausethe taxes levied by the city council for certain municipal purposes were found to have been irregularly levied, and void for that reason, the plaintiff, having paid the taxes when he purchased the land against which levied, may recover the same back, notwithstanding they were paid voluntarily, and that the rule of caveat emptor does not apply. Some authorities are cited, which it is contended support the proposition thus advanced. While the decision of the courts of the different states are not entirely harmonious on the question, we regard the matter as conclusively settled in this state by the prior utterances of this court regarding the same and similar questions. That the purchaser of real estate at delinquent tax sale is a volunteer, and subject, ordinarily, to the rules applicable to voluntary payments of taxes generally, is quite obvious from the nature of the transactions into which he enters, and it would seem the proposition hardly permits of discussion or argument. In the case of Pennock v. Douglas Co., supra, where the subject of the right to recover taxes paid by a purchaser at delinquent tax sale which were illegally assessed is exhaustively discussed, it is said: “We are urged by counsel for appellant to hold the city of Omaha liable in this case upon moral grounds, but we cannot do so. The city did not ask appellant to purchase at its tax sales. He was a volunteer, with all that that term implies.” Not only was the tax purchaser a volunteer, but under the established doctrine of this jurisdiction he purchased the property for delinquent taxes, at his own risk as to the title he acquired thereby. He had no warrant or guaranty of the regularity of the proceedings or legality of the taxes paid from the taxing authorities of the county, which issued to him a tax certificate as evidence of his purchase. This instrument has been construed as releasing and quitclaiming to the purchaser only the county's interest in and right to a lien on the real estate sold. The rule of caveat emptor is held to apply, and the purchaser secures title to the property purchased at his own risk. In the case last referred to, on this subject this court has heretofore expressed itself in unmistakable terms. It is there said: “He [the purchaser] bought without warrant or covenant of any kind, and bid what he considered the venture worth; and under these circumstances, and in a case like the present, where there was no fraud, no misrepresentation, and no mistake of the facts, it is well settled, as between individuals, that the purchaser is without remedy in case of failure of title,”--citing Rawle, Cov. § 321, and cases there cited. In McCague v. City of Omaha, 58 Neb. 37, 78 N. W. 463, it is held in the third paragraph of the syllabus that “the rule caveat emptor applies to purchasers of real estate at tax sales.” Says Norval, J., in writing the opinion: “He was not required to either pay the special taxes against the lots in question, nor to purchase the property at tax sale. He voluntarily purchased the lots for the amount of the illegal taxes imposed thereon, and he has no one but himself to blame for the loss. He cannot recover the amount back. Dixon Co. v. Beardshear, 38 Neb. 389, 56 N. W. 990. The rule of caveat emptor applies to him. Pennock v. Douglas Co., supra; Merrill v. City of Omaha, 39 Neb. 304, 58 N. W. 121;Adams v. Osgood, 42 Neb. 450, 60 N. W. 869.”

It is argued, however, that the present case, under the facts stated, on principle falls more nearly within the rule applied in the case of Wilson v. Butler Co., 26 Neb. 676, 42 N. W. 891, 4 L. R. A. 589,...