Phila. Mortg. & Trust Co. v. City of Omaha
| Decision Date | 18 December 1901 |
| Court | Nebraska Supreme Court |
| Parties | PHILADELPHIA MORTGAGE & TRUST CO. v. CITY OF OMAHA ET AL. |
PHILADELPHIA MORTGAGE & TRUST CO.
v.
CITY OF OMAHA ET AL.
Supreme Court of Nebraska.
Dec. 18, 1901.
1. Taxes levied on real estate for general revenue purposes, or by way of special assessment for benefits received on account of local improvements, is not a debt, in the ordinary meaning of the word, against the owner of the property, to be enforced as a personal liability, but a charge upon the real estate against which assessed, to be enforced and collected by a sale of the property liable for the taxes so levied and assessed.
2. By reason of the provision of section 144, art. 1, c. 77, Comp. St. 1901, an injunction will not be granted to restrain the collection of taxes unless the assessment is void, or levied for an illegal or unauthorized purpose.
3. Ordinarily the rule of estoppel in pais will not be held applicable to the acts of municipal officers in the exercise of governmental agencies of the municipality of which they are public agents, and where a city treasurer erroneously and by mistake marked on the tax records of his office that certain taxes levied on real estate were “paid,” and a third party, relying on, and in faith of, the record so erroneously made, loaned money and acquired title to the land, believing the taxes assessed thereon were paid, held, that the rule of equitable estoppel did not apply as against the municipality, and that it could not by injunction be restrained from enforcing the collection of the taxes actually due and unpaid, which had been lawfully levied and assessed on such property.
Appeal from district court, Douglas county; Fawcett, Judge.
Bill by the Philadelphia Mortgage & Trust Company against the city of Omaha and others to restrain defendants from collecting certain taxes. From a judgment dismissing the bill, plaintiff appeals. Affirmed.
Wharton Baird, for appellant.
E. H. Scott, for appellees.
HOLCOMB, J.
Plaintiff and appellant instituted this action in the court below, in the exercise of its equity jurisdiction, for the purpose of having the title to certain real estate quieted in it, and to compel the defendant city treasurer of Omaha to note on his records the payment of certain taxes appearing against said real estate as being unpaid and an apparent lien thereon, and also to enjoin the defendant treasurer from changing the records after they were made to show and record the fact that the said taxes were paid. The relief sought was based substantially on the following facts which were pleaded in the petition, and the truth of which sufficiently appears from the entire record before us: At the time of the transaction hereinafter narrated, one Henry Bolin was city treasurer, and had applied to the plaintiff for a loan of money on the real estate involved in this action, of which he was the owner. The loan was negotiated on the faith of the security offered, and, default having been made in the payment of the loan so made and the interest according to the terms of the agreement, such proceedings were thereafter had as resulted in a sale of the mortgaged property, and the purchase of the same by the plaintiff in satisfaction of its mortgage lien thereon, so that it became the owner of the property in fee simple. At the time the loan was negotiated the taxes for municipal purposes assessed and levied on the real estate offered for security for the years 1892 and 1893, and certain installments of special paving taxes, in all amounting to $258.62, were marked “Paid” on the tax records of the city. The plaintiff negotiated the loan and advanced the money to the borrower, relying on the correctness of the tax records as they thus appeared. The taxes were, in truth and fact, never paid; and subsequent to the transaction resulting in the loan, and prior to the bringing of the present action, the records were altered by the erasure of the word “Paid,” so that the taxes again appeared as unpaid, and an apparent lien on the property against which assessed and levied. On these facts the trial court found the plaintiff's bill was without equity, and that it was not entitled to the relief sought, and dismissed the action. From the decree of dismissal the cause is brought to this court by appeal.
It is agreed by all the parties interested, as we understand the record, that the entry
[88 N.W. 524]
on the tax records showing payment of the taxes was a mistake, and that the taxes so recorded as being paid were never in fact paid into the city treasury, and that the records ought not to have been so marked. At all events, there is no shadow of claim put forth by appellant to the effect that the taxes have ever been paid. The law provides that whenever taxes are paid the treasurer shall write on the tax lists, opposite the description of the real estate or personal property whereon the same were levied, the word “Paid,” together with the date of such payment, and the name of the person paying the same. Section 108, art. 1, c. 77, Comp. St. 1901. And it is the contention of the appellant that the law presumes that a public officer does his duty, and, the record showing the taxes to have been paid, it will be presumed the entry of payment was rightly...
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