McKeighan v. Hopkins

• Decision Date: 22 May 1883
• Citation: McKeighan v. Hopkins, 14 Neb. 361, 15 N.W. 711 (Neb. 1883)
• Parties: MCKEIGHAN v. HOPKINS.
• Court: Nebraska Supreme Court

14 Neb. 361

15 N.W. 711

MCKEIGHAN

v.HOPKINS.

Supreme Court of Nebraska.

Filed May 22, 1883.

Error from Johnson county.

Appelget & Son, for plaintiff.

Davidson & Easterday, for defendant.

MAXWELL, J.

This is an action of ejectment brought by the plaintiff in the district court of Johnson county against the defendant, to recover the possession of the S. W. fractional quarter of section 6, township 4, range 12, in Johnson county. The answer is a denial of the plaintiff's title. On the trial of the cause judgment was rendered in favor of the defendant, and the action dismissed. The questions to be determined are: First. Had the defendant title by adverse possession, and, if so, to what portion of said land? Second. Did he acquire title under proceedings for the foreclosure of a mortgage executed upon said real estate by the plaintiff and assigned to the defendant?

It appears from the testimony that in April, 1870, the defendant took possession of the land in question under a tax certificate dated March 1, 1869. The character of the possession is stated by the defendant as follows: “ Question. After the purchase of the tax certificate and the mortgage did you take possession of the land in controversy. Answer. I did, as I did of all lands I bought in any way. I did not move upon the land at the time, but took possession as I did of all other lands I owned in the county that I was not occupying. I managed the grass and other things, paid the taxes, etc. Q. When did you thus go into possession of the land? A. It was in the forepart of April, 1870. This assignment was made when I was in Iowa. I came out soon after. The assignment was made about the first of April.”

On the thirtieth day of May, 1871, the defendant obtained a treasurer's deed. The deed was excluded for defects in its execution. This action was commenced on the sixth day of April, 1881. The defendant, therefore, was not in possession under color of title for 10 years before the commencement of the action, unless the tax certificates constituted such color.

Washburn, in defining the phrase, says: “The term ‘color of title’ means a deed or survey of the land placed upon the record of land titles whereby notice is given to the true owner and all the world that the occupant claims the title.” 3 Washb. Real Prop. (4th Ed.) 154. If the title under which a party, relying upon possession, claims, and originally entered, be so defective as to convey no title, yet the adverse possession will not be affected by the defects in such title, (Jackson v. Todd, 2 Caines, 183;Jackson v. Sharp, 9 Johns. 162;Jackson v. Waters, 12 Johns. 365;La Frombois v. Jackson, 8 Cow. 589;) that is, a grantee who occupies real estate as owner, under a deed which fails to convey the title, for such length of time that the bar of the statute is complete, will have a perfect title by adverse possession, (Snell v. Iowa Homestead Co. 13 N. W. REP. 848;) but the instrument, whatever its name, must purport to convey the title. But a tax certificate does not purport to convey title. It is merely evidence of the purchase of the land, and two years from the date of the sale are given by the statute to the land-owner to redeem, and until that time the purchaser has no interest in the land itself, except his lien for taxes. But after the expiration of the time for redemption, and upon notice to the owner, the purchaser is entitled to a deed. This deed may be sufficient for color, even if too defective to convey title.

But in the case at bar the testimony fails to show that the defendant was in possession of the premises in controversy for 10 years prior to the commencement of the action, under color of title. There is testimony tending to show that he has been in actual possession of a portion of the premises for more than 10 years, but what particular portion does not appear. The defense of adverse possession, therefore, is not established.

Second. It appears from the testimony that in April, 1866, the plaintiff exccuted a mortgage upon the lands in question to one Perry Lawson to secure the sum of $150. Payments were made upon the debts thus secured at various times, reducing it below $100. In November, 1869, Lawson sold and assigned the mortgage to the defendant. In March, 1877, the defendant commenced an action in the district court of Johnson county to foreclose the mortgage, service being had upon McKeighan by publication. In April, 1877, a decree of foreclosure for the sum of $96.14 was rendered in said court. An order of sale was issued on this decree and delivered to the sheriff, who called George A. Phillips and J. W. Buffum to appraise the property. The following is a copy of the appraisement, omitting the formal part:

“Do upon actual view thereof appraise the property hereinafter described at its real money value as the property of Mathew McKeighan, taken by virtue of an order of sale issued out of the district court of the first judicial district of Nebraska, in and for the county of Johnson, wherein Pitt Hopkins is plaintiff, and the said Mathew McKeighan was defendant: The S. W. fractional 1/4 of section No. 6, in township No. 4 N., of range 12 E., in Johnson county, Nebraska.

Valued at the sum of $872.15.

Taxes as per county treasurer's certificate, $22.15.

Tax title of Pitt Hopkins.

The interest of Mathew McKeighan, defendant, we value at $10.”

The land was sold to Joseph W. Buffum for the sum of $156. The sale was reported to the court and confirmed, and a deed ordered and made to the purchaser. Buffum and wife thereupon conveyed to the defendant. The attorney for the defendant contends that even if the appraisement was illegal,--in fact, no appraisement at all,--that the order of confirmation cured that defect, and that such order cannot be attacked collaterally. He also contends that no appraisement was necessary in sales under a decree of foreclosure.

Section 491a (Comp. St. 593) of the Code, provides that “whenever, hereafter, execution shall be levied upon any lands and tenements, the officer levying the same shall call an inquest of two disinterested freeholders, who shall be residents of the county where the lands taken on execution are situated, and administer to them an oath impartially to appraise the interest of the person or persons,...