Merrill v. Wright

• Decision Date: 26 June 1894
• Citation: 59 N.W. 787,41 Neb. 351
• Parties: MERRILL v. WRIGHT ET AL.
• Court: Nebraska Supreme Court

41 Neb. 351

59 N.W. 787

MERRILL

v.WRIGHT ET AL.

Supreme Court of Nebraska.

June 26, 1894.

Syllabus by the Court.

To uphold the validity of a tax lien sought to be foreclosed, neither a levy nor assessment of taxes will be presumed from the mere introduction in evidence of a treasurer's receipt for taxes, or such treasurer's certificate of a purchase at tax sale, when the existence of such levy and assessment have been put in issue by the answer.

Appeal from district court, Douglas county; Wakeley, Judge.

Action by H. A. Merrill against Joanna C. Wright and others to foreclose a tax lien. Judgment for plaintiff, and defendants appeal. Reversed.Andrew Bevins, for appellants.

Henry W. Pennock, for appellee.

RYAN, C.

Plaintiff, in her petition, alleged that at public tax sale on November 9, 1887, she bought for the then due and delinquent taxes of the year 1886 thereon the west one-half of lot 7, block 24, of the city of Omaha, and paid the county treasurer therefor the sum of $76.46, which was the amount of the county and city taxes of the year 1886, together with interest, penalty, and costs allowed by law, and accordingly received the certificate of such treasurer; that, as a part of said tax sale, plaintiff was required to pay, and did pay, to said county treasurer, other items of taxes on said premises, which were due and delinquent at the time of said sale, to the amount of $340. An itemized statement of the several items which made up the above aggregate sum of $340 was set out in the petition, from which it appeared that there was thus paid Omaha city taxes of the years from 1879 to 1884, inclusive, the sum of $193.96; special Omaha taxes (sidewalk) for 1876-1880, 1882, 1883, and 1887, the sum of $65.80. The balance, of $80.24, was for curbing and guttering. Plaintiff further alleged that after said purchase, and as holder of the tax title, she paid city taxes for 1887-1889, amounting, principal and interest, to the sum of $143.05, and in the year 1889 installments of special paving tax, amounting, principal, interest, and costs, to $92.67. In the petition were these averments: “(6) A tax deed, if taken out on said real estate under and by virtue of said treasurer's certificate of tax sale, would be invalid and ineffectual to convey title to said property, and the plaintiff elects to consider said tax certificate and accompanying receipts a lien on said premises in the nature of a mortgage, and to foreclose the same as by law provided.” No reason is given for the assumption that the tax deed, if issued, would be invalid and ineffectual to convey title. We shall therefore accept this conclusion as fully warranted by the facts. The petition contained the averments that Joanna C. Wright was at the time of the filing of the petition, and prior thereto had been, the owner of the real property against which relief was sought; that no proceedings at law had been had for the recovery of the amount of said taxes; and closed with a prayer for a foreclosure of the lien for the payment of the taxes paid, interest, and costs. By the answer it was admitted that Joanna C. Wright was at the time of the pretended tax sale, and still continued to the date of filing said answer, the owner of the premises against which the foreclosure of a lien was sought, and that no proceedings at law had been had to recover the moneys alleged to have been paid by plaintiff. Following these admissions was a denial of each and every allegation not admitted in the answer. There was a decree of foreclosure as prayed in plaintiff's petition, from which the defendant appeals to this court.

We shall not enter into a detailed review of the discussion in the brief as to the sufficiency of other averments of the answer, for this general denial was sufficient, whatever may have afterwards been inartistically...