Medland v. Linton

• Decision Date: 16 May 1900
• Docket Number: 9,209
• Citation: 82 N.W. 866,60 Neb. 249
• Parties: WILLIAM MEDLAND, APPELLEE, v. PHEBE R. E. E. LINTON ET AL. APPELLANTS
• Court: Nebraska Supreme Court

82 N.W. 866

60 Neb. 249

WILLIAM MEDLAND, APPELLEE, v. PHEBE R. E. E. LINTON ET AL. APPELLANTS

No. 9,209

Supreme Court of Nebraska

May 16, 1900

APPEAL from the district court of Douglas county. Heard below before KEYSOR, J. Reversed.

REVERSED AND REMANDED.

John T Cathers and W. A. Redick, for appellant.

John T Cathers: The statutes relating to the publication of the delinquent tax list, and the selling of property by the county treasurer, are mandatory, and must be followed literally by the county treasurer, and his failure to comply with the law renders all the proceedings in relation thereto invalid. Miller v. Hurford, 11 Neb. 383; Ledwich v. Connell, 48 Neb. 172; Smith v. City of Omaha, 49 Neb 883.

If the county treasurer did not comply with the law in selling the land, the court erred in allowing twenty per cent interest and attorney's fees. Pettit v. Black, 8 Neb. 52; Lynam v. Anderson, 9 Neb. 367; Jones v. Duras, 14 Neb. 40; Dillon v. Merriam, 22 Neb. 151; Stegeman v. Faulkner, 42 Neb. 53. The burden of proof is on the plaintiff to prove that the tax is legal. Merrill v. Wright, 41 Neb. 351.

A board of equalization must be and remain in session ready to hear complaints during the hours advertised for its meeting. Hutchinson v. City of Omaha, 52 Neb. 345.

H. W. Pennock, contra:

It is objected that the return made by the county treasurer to the clerk, of the public tax sale for the year 1890, was insufficient to comply with section 112 of the revenue law. The object of this section is twofold:

First. It provides for a permanent record to be kept by the county treasurer showing the lands sold, the names of the purchasers and the sum or sums for which each tract was sold. This is the general record of tax sales kept by the treasurer to indicate the condition of such sales in his county. If the land has been redeemed, it is noted on this record; if a tax deed has been issued, that fact is also noted on the sales book.

Second. The latter half of this section provides for a "return" to be made by the treasurer to the clerk on or before the first Monday of December, following the public tax sale. It would seem also to provide for a "certificate" of the treasurer.

If the revenue act of 1879 be examined in all of its parts, it will be apparent that the provision for a return of the treasurer to the clerk subserves but one purpose, viz.: It is an official declaration that the public tax sale has closed, and that private tax sales, under section 113, may begin.

Return means report of an officer. It signifies the bringing back of some original document with the officer's certificate indorsed thereon, showing what has been done by such officer. Anderson's Law Dictionary, p. 898.

The word week, as used in the statute, means a period commencing on Sunday morning and ending Saturday night. Anderson's Law Dictionary, p. 1111; Ronkendorff v. Taylor, 4 Pet. [U.S.], 361.

On the question of notice counsel cited: McEneney v. Town of Sullivan, 125 Ind. 407; Mayor v. Bouldin, 23 Md. 328; City of Ottawa v. Macy, 20 Ill. 413; Lyman v. Plummer, 75 Ia. 353; Clinton v. City of Portland, 26 Ore. 410; State v. City of Bayonne, 52 N. J. Law, 503.

OPINION

HOLCOMB, J.

An action was begun in the district court of Douglas county by plaintiff, appellee, for the foreclosure of a tax lien upon certain property in the city of Omaha, described in the petition, for state, county and city taxes, including special assessments against the property, on account of the opening, extending and grading of a certain street in said city. Several defenses were interposed at the trial by appellants, all of which were directed to the alleged invalidity of the tax sale and the special assessments referred to. A decree was rendered for the plaintiff for the principal sums paid at the tax sale and subsequently thereto, with interest and attorney fees, and the property was directed to be sold to satisfy the decree so rendered. From this decree defendants appeal. The several objections to the judgment of the trial court will be noted in their order.

It is first urged that the sale for taxes, being at private sale, was without authority and invalid, for the reason, as alleged, that the law had not been complied with, in that no report had been made to or filed with the county clerk, of lands sold at public auction, as required by section 112, article 1, chapter 77, of the revenue laws of the state. The section referred to requires that "the treasurer shall keep a sale book, showing the lands sold, the name of the purchaser, and the sums for which each tract was sold, and on or before the first Monday of December following the sale of real property he shall file in the office of the county clerk of his county a return thereof, as the same shall appear on the said sale book, and such certificate shall be evidence of the regularity of the proceedings." Before lands and lots can be legally sold at private sale, under the provisions of the section quoted, the treasurer must file with the county clerk a return, showing the lands and lots sold at public auction, to whom sold, and for what sum; and any attempt to sell real property for taxes at private sale without compliance with the provisions of said section invalidates the sale so attempted to be made. The force and effect of the provisions quoted is no longer an open question in this state. The construction given was put upon it as early as 1880, when, in the case of State v. Helmer, 10 Neb. 25, 4 N.W. 367, it was determined "that the county treasurer had no right or power to sell real estate for taxes at private sale until after his report of sales of real estate at public sale is made and filed in the office of the county clerk." The ruling just mentioned has been adhered to and reaffirmed in Adams v. Osgood, 42 Neb. 450, 60 N.W. 869, and Johnson v. Finley, 54 Neb. 733, 74 N.W. 1080.

In the case at bar it is disclosed by a stipulation of the parties, preserved in the record, that the only attempt at compliance by the county treasurer with the statutory requirements under consideration, was in taking the records of his office showing the public sales of real property for taxes due that year into the office of the county clerk and, presenting such record to the county clerk, in his presence making a certificate thereon at the end of the record of sales to the effect that he thereby made a return, and that the list of property as shown on the record had been sold by him at public sale as required by law, and then signing his name to such certificate; after which, and on the same date, according to the stipulation, the said book or record containing said list of lands, with the certificate thereon, was taken back to the county treasurer's office, and that no other or different return of public sales was made for the year mentioned. This, in our judgment, is neither in letter nor in spirit a compliance with the section of the statute referred to. It is, in fact, a mere subterfuge or evasion of the law, and is no return at all, and can not be countenanced as such. It would be much more reasonable and logical to construe the statute as directory only, and hold that a compliance therewith is not essential to the validity of the sale of real property at private tax sale, than to treat as a compliance with the law the acts of the county treasurer as they are disclosed by the stipulation in the record in this case. As has heretofore been noted, this question is already settled by a construction of the section quoted, and a substantial compliance with its provisions is necessary in order that a private sale of lands for taxes may be valid. The law requires that this return, or report, shall be filed in the office of the county clerk. To file, in law, means "to leave a paper with an officer for action or preservation; and, to indorse a paper, as received into custody, and give it its place among other papers--to file away." Anderson, Law Dictionary. In modern usage, "filing a paper consists in placing it in the proper official's custody by the party charged with this duty, and the making of the proper indorsement by the officer." Stone v. Crow, 2 S.D. 525, 528, 51 N.W. 335. "A paper is said to be filed when it is delivered to the proper officer and by him received to be kept on file. (Bouvier, Law Dictionary.) And the derivation and meaning of the word, as defined in the dictionaries, carries with it the idea of permanent preservation; becoming part of the permanent records of the public office where it is filed. (Rapalje & Lawrence, Law Dictionary; Century Dictionary.)" People v. Peck, 67 Hun 560, 570, 22 N.Y.S. 576; Gorham v. Summers, 25 Minn. 81; Pfirmann v. Henkel, 1 Bradw. 145. There being no proper return of lands sold at public auction, as by law required, the treasurer was without authority to dispose of the lot of land in controversy at private sale, and the tax sale thus made is, therefore, invalid. By the subsequent proceedings had thereunder, the plaintiff was not in a position to recover the penalty of twenty per cent interest and attorney's fee, as are allowed in cases of valid tax sales. Under the holdings of this court, at most, he is entitled to subrogation to the rights of the county, and to enforce a lien against the property upon which the taxes were paid for the principal sums paid, with interest thereon as provided by the statute.

In Stegeman v. Faulkner, 42 Neb. 53, 54, 60 N.W. 319 it is held that "a purchaser at an invalid tax sale is not entitled to have taxed in his favor an attorney's fee as part of the costs of the foreclosure of the lien to which he has by payment become subrogated." In the opinion by RYAN, C. page 56, it is said: "As the rights of the appellant to foreclose are...