Moffitt v. Reed

• Decision Date: 17 February 1933
• Docket Number: No. 28318.,28318.
• Citation: 124 Neb. 410,246 N.W. 853
• Parties: MOFFITT v. REED ET AL.
• Court: Nebraska Supreme Court

124 Neb. 410

246 N.W. 853

MOFFITT

v.REED ET AL.

No. 28318.

Supreme Court of Nebraska.

Feb. 17, 1933.

Syllabus by the Court.

1. When a question has been litigated before between the same parties, and the court has determined the question between them, that judgment is an absolute bar to that same matter, as well as to every matter offered to sustain or defeat that contention. Former judgment is now binding upon these parties, it having never been modified or reversed.

2. The conveyance of a certain tract of land by the life tenant conveys to the grantee such estate as the life tenant holds, and for such conveyance the remaindermen cannot ordinarily declare a forfeiture, as their rights are not usually affected thereby.

3. The party foreclosing a lien for taxes under section 77-2040, Comp. St. 1929, may, under proper pleadings, make out a prima facie case by the introduction of his tax certificate and receipts. If the defendant landowner has set out proper defenses thereto and introduced sufficient competent evidence in support thereof, he thereby overcomes the presumption of regularity of the proceedings. But the burden of proof is upon the plaintiff throughout to establish his case by a preponderance of the evidence.

Appeal from District Court, Lancaster County; Broady, Judge.

Action by Thomas W. Moffitt against Gertrude D. Reed, impleaded with Vernetta Marie Hansen and others, and wherein certain defendants filed cross-petitions. From the judgment rendered, the defendant Gertrude D. Reed appeals, and the defendant Vernetta Marie Hansen and others cross-appeal.

Judgment modified, and, as modified, affirmed.

See, also, 123 Neb. 420, 243 N. W. 271.

Gertrude D. Reed, pro se.H. N. Mattley and Walton B. Roberts, both of Lincoln, for Hansen and others.

Walter L. Anderson, of Lincoln, for Moffitt.

Heard before GOSS, C. J., and DEAN, GOOD, EBERLY, DAY, and PAINE, JJ.

PAINE, Justice.

Plaintiff brought action to foreclose a tax certificate against 80 acres of land in Lancaster county. All parties having an interest in said 80 acres, so far as plaintiff could ascertain, were made defendants. Several answers and cross-petitions were filed, and trial was had upon June 4, 1931, and upon December 3, 1931, a decree was entered in the district court, finding that $766.56, with 12 per cent. interest, was due the plaintiff on his tax certificate, and the same was decreed to be a first lien. The decree also provided for an attorney's lien of 10 per cent. thereof to Walter L. Anderson. The court allowed $75 to Walton B. Roberts as guardian ad litem, to be taxed as part of the plaintiff's costs. All of the claims of Cora O. Berge and H. N. Mattley, cross-petitioners, were dismissed. The possession of the property was continued in receivership until after sale by the sheriff. The decree found that Gertrude D. Reed had a life estate in the property, and directed that the property be sold and the proceeds applied in the manner set out in the decree. The pleadings in the case are exceedingly voluminous, and it is impossible in this opinion to set out but a very brief summary of them.

The plaintiff, Thomas W. Moffitt, in the fourth cause of action of his petition, alleges that he purchased a tax certificate upon the east half of the southeast quarter of section 15, township 8, range 8, in Lancaster county, Nebraska, for delinquent taxes for the year 1924, amounting to $57.25, and thereafter paid as subsequent delinquent taxes to said certificate, for 1925, $61.88; for 1926, $58.91; for 1927, $78.03; and upon June 5, 1929, paid the delinquent taxes for 1928, of $143, and upon May 20, 1930, paid the delinquent taxes for 1929, for $148.70. Plaintiff then sets out that Charles Monk and wife were the tenants in actual possession of the property, and that Gertrude D. Reed, Gertrude Reed, assignee, William D. Way, Victor C. Rasmussen, Zella Rasmussen, Vernetta Marie Rasmussen, Emma Lois Rasmussen, Merle Warren Rasmussen, Victor Reid Rasmussen, H. N. Mattley et al. all claim some interest in said real estate.

Plaintiff further alleged that Mary Rasmussen in her lifetime was the owner of the property, and that, as her estate was being probated in Lancaster county, he was unable to ascertain the interests or rights of her respective heirs. That H. N. Mattley and George W. Berge were the attorneys in said estate proceedings, and have a claim for their fees therein; that Zella Rasmussen has now remarried, and her present husband's name is Wayne Rogers. Plaintiff asks for an accounting, and that his tax lien be declared a first lien against said property, and for other relief. Upon December 12, 1930, Walton B. Roberts was appointed guardian ad litem for the three minor defendants, each over the age of 14 years.

Upon February 10, 1931, Gertrude D. Reed filed her answer to plaintiff's petition, and a cross-petition against all other defendants, and alleged among other things that Mary Rasmussen was during her lifetime the owner in fee simple of the 80 acres of land hereinabove described, and the said Mary Rasmussen died on March 10, 1910, leaving a last will, in which, in the second paragraph thereof, she devised the said 80 acres to her husband, Lars Rasmussen. Other paragraphs of said will are set out as follows:

“Third. After the death of my beloved husband, I desire that the above described farm become the property of my beloved son, Victor C. Rasmussen.

Fourth. The widow of Victor C. Rasmussen, Zella Rasmussen, is to have the use of the above described farm so long as she shall remain single and his widow.

Fifth. At the death of the widow, Zella Rasmussen, the heirs shall sell the farm above described and divide the proceeds of the sale equally between them.”

Cross-petitioner states that Lars Rasmussen died December 23, 1916, intestate, and alleges that the county court of Lancaster county determined that Victor C. Rasmussen was the only heir at law of Lars Rasmussen, and inherited said land in fee simple from his father. She further alleges that on May 17, 1923, execution was issued upon two judgments against said Victor C. Rasmussen, and the sheriff of Lancaster county levied on said land, and at the sheriff's sale thereon the cross-petitioner, Gertrude D. Reed, purchased the same, and sheriff's deeds were delivered to her and recorded October 10, 1923, and claims that she thereby became, and is now, the fee owner of said land, and took possession thereof on July 14, 1923. Cross-petitioner further sets out that Zella Rasmussen, now Zella Rogers, claims some interest in said land by reason of the said fourth paragraph of the will of Mary Rasmussen, and that said claim casts a cloud upon the title, which should be removed; that the children of Victor C. Rasmussen and his first wife, Zella Rasmussen, claim some right in said property under the fifth paragraph of said will, by reason of being the “heirs” of Mary Rasmussen, but Miss Reed alleges that the fifth paragraph of said will is void, and asks to have the cloud cast by the claims of such heirs removed. The cross-petitioner alleges that certain defendants claim an interest in said land by reason of a pretended judgment rendered May 8, 1926, in the district court for Lancaster county in the case of Gertrude D. Reed v. Victor C. Rasmussen et al., and claims that the court was without jurisdiction and the same is void, and subjects the title to the land in question to constant litigation by each and every grandchild or great-grandchild who makes a claim thereto, and prays that the pretended judgment which casts a cloud upon her title be removed. Cross-petitioner insists that the interests of all other defendants in this case are junior and inferior to her rights, and asks that the title of said 80 acres be forever quieted in her, subject only to the taxes that are lawfully levied and assessed against the land.

For answer to plaintiff's petition, she specifically denies that the taxes levied for school purposes for the years 1929, 1930 and 1931 were lawfully levied or assessed against said land. She alleges that Charles Monk, who was the tenant thereon, without her authority or knowledge made application for the transfer of 40 acres of her land from school district 116 to district 8; that said application showed upon its face that none of the several provisions in section 79-2101, Comp. St. 1929, were fulfilled or complied with, and that such application for transfer was void, and that plaintiff has notice of the defects of the levy and assessment of said school taxes. She further alleges that, acting upon said application, said transfer was made of 40 acres of her land, and without authority of law the taxing officers reappraised the 40 which they had transferred at $5,000, while the 40 that remained in district 116 was appraised at $3,500, which increased her taxes illegally by about $75 per annum.

To this answer the transcript shows no reply filed by the plaintiff, although replies are filed by Vernetta Marie Hansen, Emma Lois Ryan, Merle Warren Rasmussen, Victor Reid Rasmussen, Walton B. Roberts, guardian ad litem. That in the answer and cross-petition of Hansen and Ryan against Reed, she is charged with having sold a portion of said premises to the state of Nebraska for $210 for highway purposes, and that a judgment should be entered against her therefor, and, in addition, for $500 damages for this and other waste committed thereon.

This appeal was prosecuted in this court by Gertrude D. Reed, who was allowed extra time for oral argument, and who has been permitted to file five separate briefs herein. For reasons of her own, she has separately briefed and argued her contentions against the plaintiff and against the other cross-petitioners. However, the decree of the district court covered all the separate contentions in one journal entry, and this opinion will discuss briefly each of her contentions, as far as the same can be done within the reasonable limits of an...