Miller v. Hurford

• Decision Date: 14 June 1881
• Citation: 11 Neb. 377,9 N.W. 477
• Parties: MILLER v. HURFORD.
• Court: Nebraska Supreme Court

11 Neb. 377

9 N.W. 477

MILLER

v.HURFORD.

Supreme Court of Nebraska.

Filed June 14, 1881.

Appeal from Douglas county.

John D. Howe, for plaintiff.

Estabrook & Connell, for defendant.

MAXWELL, C. J.

This is an action to foreclose certain tax liens. The plaintiff alleges in his petition that he purchased the E. 1/2 of N. E. 1/4 of the N. W. 1/4 of the N. W. 1/4 of section 22, town 15 N., range 13 E., in Douglas county, being five acres of ground situate in the city of Omaha, on the twenty-ninth day of January, 1876, for the taxes due thereon for 1874, amounting to the sum of $115.32, and for the taxes for the year 1873, amounting to the sum of $67; and, on the ninth of November, 1877, for the taxes of 1876, amounting to the sum of $107.34; and that as purchaser of said land he paid other taxes thereon, as follows: January 29, 1876, county and state taxes for the year 1870, $359.14; January 26, 1876, county and state taxes for 1871 and 1872, $261; August 21, 1876, county and state taxes for 1875, $62.60; October 31, 1878, county and state taxes for 1877, $52.70; October 31, 1878, city taxes for 1877, $59.16;--the total amount being the sum of $1,141.21. That certificates of purchase were duly issued to the plaintiff, which, on or about the first day of February, 1878, were surrendered to the treasurer of said county, and tax deeds in due form were issued and delivered to him, which were afterwards duly recorded. That at the February, 1879, term of the district court of Douglas county, in the action to obtain possession of said land, it was held that the plaintiff's title to said land under said deed had failed, and the plaintiff waives all claim of title to said land by virtue of said deeds, except to and for a lien of the taxes paid as aforesaid, and that no part of the same has been paid, etc.

The defendants Redick and Connell, in their answer, admit that the plaintiff purchased the lands in controversy on the twenty-ninth day of January, 1876, “for certain pretended county, state, and city taxes claimed to have been levied for the year 1874, and also admit the purchase for the years 1873 and 1876, and that he received certificates of purchase and afterwards tax deeds, which were duly recorded. That on the twenty-eighth of May, 1878, the plaintiff commenced an action of ejectment against the owners of said land, which came up for trial on the third of May, 1879,” and that “said plaintiff intentionally and purposely submitted said cause to said court and jury without offering said deeds, or either of them, in evidence, and without offering any proof whatever in relation to said deeds, or their contents, to said tax purchasers, or payments, and nowhere did it appear in the pleadings in said cause, or in any of the tax proceedings or the record thereof, that the validity of said tax deeds, or the title of said plaintiff acquired by reason of said purchases at treasurer's sale, was in any way involved,” etc. That after the expiration of three days from the rendition of the judgment, no attempt being made to vacate the same, the defendants Redick and Connell purchased said premises from the Hurfords, and received warranty deeds of conveyance.

It is alleged in the answer, and denied in the reply, that the Hurfords had a sufficient amount of personal property in Douglas county, during the time for which the taxes were delinquent, from which the aforesaid taxes could have been collected. They deny that there was any legal or valid assessment or levy of taxes on said real estate in the years named.

On the trial of the cause a decree for the sum of $1,668 was rendered in favor of the plaintiff. The defendants Redick and Connell appeal to this court. In 1871, the following amendment to the revenue law of 1869 was passed, (Laws 1871, p. 82:) “Whenever the title acquired by a purchaser of real estate at treasurer's sale shall fail, the purchaser at such sale, or his heirs or assigns, shall have a lien on the real estate so purchased for the full amount of the purchase money, together with interest thereon from the date of such purchase at the rate of 40 per cent. per annum, until the same is fully paid, and such purchaser, his heirs or assigns, may levy all taxes lawfully assessed on such real estate after such purchase, and when the said title shall fail, may have a lien for all such taxes, together with interest thereon from the time of payment at the rate aforesaid. The lien hereby created may be enforced in the manner directed by law for foreclosing mortgages.” This act was not signed by the governor, but is certified by the presiding officers of the senate and house of representatives. It is objected that the senate and house adjourned before the expiration of three days from the time the bill was presented to the governor for his approval. It appears from the journals of the two bodies that the adjournment was had from the twenty-ninth of March, 1871, to the thirtieth of May of that year, and that the governor had possession of the bill for more than three days while the legislature was in session, it being retained until June 6, 1871, the legislature being in session from May 30. The provisions of section 19, art. 3, of the Constitution of 1867, apply to adjournments sine die and not to adjournments from time to time. But an amendment must be germane to the subject-matter of the act or section to be amended. Our constitutional provision, that “no bill shall contain more than one subject, which shall be clearly expressed in the title,” is but making inviolable the rule governing legislative bodies that “no proposition or subject different from that under consideration shall be admitted under color of amendment.” Experience has shown that in the absence of constitutional restrictions the rule at times is liable to be overthrown, and objectionable and pernicious legislation is the result. To guard against...