Spiech v. Tierney

• Decision Date: 03 November 1898
• Docket Number: 8374
• Citation: 76 N.W. 1090,56 Neb. 514
• Parties: EMANUEL SPIECH, APPELLEE, v. IDA TIERNEY ET AL., APPELLEES, IMPLEADED WITH JOHNSON COUNTY, APPELLANT
• Court: Nebraska Supreme Court

76 N.W. 1090

56 Neb. 514

EMANUEL SPIECH, APPELLEE, v. IDA TIERNEY ET AL., APPELLEES, IMPLEADED WITH JOHNSON COUNTY, APPELLANT

No. 8374

Supreme Court of Nebraska

November 3, 1898

APPEAL from the district court of Johnson county. Heard below before BUSH, J. Reversed.

REVERSED AND REMANDED.

J. W Deweese, F. E. Bishop, and J. Hall Hitchcock, for appellant.

Fred'k Shepherd, Hugh Lamaster, and M. B. C. True, contra.

OPINION

SULLIVAN, J.

In 1872 Mary A. Tierney, being the fee owner of lots 5, 6, and 7, in block 41, of the city of Tecumseh, in Johnson county, died intestate, leaving her surviving, Kyron Tierney, her husband and six minor children. As tenant by the curtesy Kyron occupied and enjoined the use of the lots from 1871 to 1894 but did not pay the taxes levied against the same except for the years 1877 to 1881. In 1893 William Cummings purchased at execution sale the interest of George Tierney in the premises, and thereby became the owner of an undivided one-sixth of the same. He then, after the death of Kyron Tierney, brought this action to partition the property and made the county of Johnson a party defendant. There is no dispute between the plaintiff and the heirs regarding their respective interests. The entire controversy in the case arises out of the claim of Johnson county for taxes. The district court appointed Corydon Rood, Esq., referee to ascertain the liens and incumbrances existing against the lots, and from his report it appears, in addition to the facts already stated, that the taxes from 1871 to 1877 might have been collected by the seizure and sale of Kyron Tierney's personal property. The district court was of the opinion that the taxes for these years had ceased to be a lien on the premises, and disallowed the claim of Johnson county therefor. The correctness of this holding is the first question presented for decision by the appeal. Section 50 of the revenue act in force during the period in question is as follows: "On the first day of May of the year after which taxes shall have been assessed, all unpaid state, county, school, precinct, city, and village, except city taxes in cities of first class, shall become delinquent, and shall draw thereafter one per cent per month interest, which interest shall be collected the same as the tax so due, and it shall be the duty of the county treasurer, or any other person charged with the collection of delinquent taxes, to proceed as soon after the first day of May as practicable to make such delinquent tax out of the personal property of such delinquent, if any such property can be found; and this provision shall apply as well to the taxes assessed on real estate and remaining unpaid, as to delinquent taxes assessed on personal property, and the remedy to be pursued shall be the same as provided in sections forty-nine and fifty-two of this act; and the treasurer shall be entitled to five per cent additional compensation for making such collection, to be paid such delinquent, and also the fees now prescribed by law." (General Statutes 1873, p. 916, ch. 66, sec. 50; Session Laws 1871, p. 81, sec. 1.) Other sections of the act made taxes upon real property a perpetual lien thereon "against all persons and bodies corporate," and required every person subject to taxation to attend at the treasurer's office and pay his taxes without demand.

The proposition for which appellees contend is that the failure of the treasurer to collect the taxes by distress and sale of Kyron Tierney's personalty divested the lien from their reversionary interest in the land. We do not think it did. As between the heirs and the tenant for life, it was undoubtedly the duty of the latter to pay all taxes assessed against the land during the continuance of his estate. (Disher v. Disher, 45 Neb. 100, 63 N.W. 368; Prettyman v. Walston, 34 Ill. 175; Thompson v. McCorkle, 136 Ind. 484, 34 N.E. 813; 1 Washburn, Real Property secs. 96, 97.) This was a duty due from Kyron Tierney to the owners of the fee, and one which they might by an appropriate action enforce at any time. The taxes were not a lien only upon the particular estate of the life tenant. They were a lien on the land itself and were payable at the treasurer's office without demand. While section 50 of the act of 1871 remained in force it prescribed the remedy for enforcing payment of all land taxes. No other remedy could be then pursued. The land could not be sold until the personalty of the delinquent owner had been first exhausted. But when section 50 was repealed, in 1877, the right and the duty of the treasurer to seize chattels for the satisfaction of taxes assessed against real estate no longer existed. (State v. Cain, 18 Neb. 631, 26 N.W. 371; County of Lancaster v. Rush, 35 Neb. 119, 52 N.W. 837.) The remedy was modified by the repealing act, but the right remained--the lien of real estate taxes was fully preserved and by subsequent legislation has been continued in force. The duty of collecting taxes at the time named in the statute was not imposed on the treasurer of Johnson county for the benefit of these reversioners, but rather to enable the state and municipal or political corporations to which the taxes belong to promptly secure the revenues necessary to meet their current expenses. The treasurer was a public agent, and his duty in this respect was to his principal. The appellees can ground no equity upon his failure to discharge an obligation laid upon him by law for the benefit of the public. The statute made the taxes a perpetual lien, which no mere inaction on the part of the treasurer could release or divest. In Adams v. Osgood, 42 Neb. 450, 60 N.W. 869, it is said: "Whatever may be the rule elsewhere, we think, under our statutes, that the only way by which a valid tax existing against real estate here can be discharged is by the payment of such tax, unless such real estate be sold for taxes and the holder of the tax lien fails to bring suit to foreclose the same for five years after the expiration of the time to redeem." The recent case of Johnson v. Finley, 54 Neb. 733, 74 N.W. 1080, is to the same effect. It was there said: "Taxes upon real estate are made a perpetual lien thereon, and the property cannot be relieved from this burden except by a payment of the taxes, or, in case it has been sold, the neglect of the purchaser to bring an action to foreclose his lien until after the statute of limitations has run." Our conclusion upon this branch of the case is that the failure of the treasurer to make the taxes, for the years in question, out of the personal property of Kyron Tierney, did not discharge such taxes nor release the land from the lien thereon.

The referee found that the assessor's oath was not attached to the assessment roll for the year 1874, and, in view of this finding, it is claimed that the tax for that year is without any legal basis and absolutely void. Conceding that the appellant is in the attitude of a plaintiff seeking to foreclose a lien, and that it was required to furnish affirmative proof of every fact essential to its cause of action, we do not think it has failed to prove a valid tax for the year in question. It was not necessary to show that the assessor took the oath which the statute made it his duty to take. He was a public officer, and it will be presumed, in the absence of evidence to the contrary, that he proceeded regularly and performed his official duties within the law and in strict obedience to its mandate. The fact that the oath was not annexed to the assessment book is of slight consequence and altogether insufficient to overthrow the presumption that the oath was taken. Upon this question Twinting v. Finlay, 55 Neb. 152, 75 N.W. 548, is decisive. In that case NORVAL, J., delivering the opinion said: "It is not alleged in the answer, nor was it proven on the trial, that the assessor did not make oath to his return at the time he deposited the same with county clerk. The mere failure to attach the assessor's oath to the assessment roll did not invalidate the tax based on such assessment. The omission was an irregularity merely." To the same effect and precisely in point is the earlier case of McClure v. Warner, 16 Neb. 447, 20 N.W. 387.

In the year 1876 the valuation fixed by the assessor upon the lots in question was $ 700. The county commissioners, sitting as a board of equalization, increased this valuation to $ 1,300 without notice to any of the parties. This action of the board was unauthorized and utterly null. It was an attempt to deprive the appellees of their property without due process of law. In the administration of the revenue laws there is no more justice in taking property by increasing its valuation as fixed by the assessor, without notice to the owner and an opportunity to be heard, than there would be in seizing the same property for the satisfaction of a judgment rendered without service of process. In the case of Sioux City & P. R. Co. v. Washington County, 3 Neb. 30, this question was considered by the court and the conclusion reached that the board of equalization was without authority to increase...