McKeighan v. Hopkins
| Decision Date | 22 May 1883 |
| Citation | 15 N.W. 711,14 Neb. 361 |
| Parties | MATTHEW MCKEIGHAN, PLAINTIFF IN ERROR, v. PITT H. HOPKINS, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Johnson county. Tried below before WEAVER, J.
REVERSED AND REMANDED.
T Appelget & Son, for plaintiff in error.
Appraisement illegal. Sessions v. Irwin, 8 Neb. 7. Rosenfield v Chada, 10 Neb. 422. Sale was void. Comp. Stat., 594. Maple v. Nelson, 31 Iowa 322. Banks v Bales, 16 Ind. 423. Adverse possession. 3 Wash. on Real Prop., 119. Tyler Ejectment, 861, 875, 890. Purchaser chargeable with notice. Hubbell v. Broadwell, 8 Ohio 128. Ejectment lies. Harrison v. Ropp, 2 Blackf. 1. Smith v. Cocknell, 6 Wall. 758. Maguire v. Smith, 4 Blackf. 228.
Davidson & Easterday, for defendant in error.
Adverse possession. Tyler Ejectment, 921. Jackson v. Norton, 18 Johns. 355. Jackson v. Leek, 12 Wend. 165. Confirmation cannot be attacked. Phillips v. Dawley, 1 Neb. 322. Day v. Thompson, 11 Neb. 128. Rorer on Judicial Sales, 58. No appraisement was necessary. Comp. Stat., 627.
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 south-west fractional quarter of section 6, town 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:
Q. After the purchase of the tax certificate and mortgage did you take possession of the land in controversy?
A. 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 fore part 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 30th 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 6th day of April, 1881. The defendant, therefore, was not in possession under color of title for ten 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 Wash., R. P. (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. LaFrombois 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., 59 Iowa 701, 13 N.W. 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 ten 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 ten 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 executed a mortgage upon the lands in question to one Perry Lawson to secure the sum of $ 150. Payments were made upon the debt 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:
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.
Sec. 491a (Comp. St., page 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, or corporation against whom the execution is levied, in the property so levied upon, and such officer, together with said freeholders, shall appraise said interest at its real value in money; and such appraisement shall be signed by such officer and said freeholders, respectively."
Sec 491b provides: "That for the purpose of the appraisement mentioned in the last preceding section, the officer and the freeholders therein named shall deduct from the real value of...
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