Taylor v. Courtney

• Decision Date: 12 October 1883
• Citation: 16 N.W. 842,15 Neb. 190
• Parties: TAYLOR v. COURTNEY AND OTHERS.
• Court: Nebraska Supreme Court

15 Neb. 190

16 N.W. 842

TAYLOR

v.COURTNEY AND OTHERS.

Supreme Court of Nebraska.

Filed October 12, 1883.

Appeal from Lancaster county.

Lamb, Billingsley & Lambertson, for plaintiff.

D. G. Courtnay and J. L. Caldwell, for defendants.

Burr & Marshall, for defendant Manning.

MAXWELL, J.

The plaintiff claims to be the owner of lot 13, in block 56, in the city of Lincoln, with the building thereon, known as the “Clifton House,” and filed his petition against Courtney and wife, in the district court of Lancaster county, to redeem said real estate from certain tax sales, under which Courtney holds possession, and to recover the possession, and for the rents and profits. Courtney and wife answered the petition, alleging that that they and their grantor have been in possession of said premises ever since the thirteenth day of February, 1878, under a tax deed to Harris, Courtney's grantor, which deed was, at the aforesaid date, duly recorded, and which, being recorded for more than three years, vests a perfect title in the defendants; and also alleging that the plaintiff claims title under a sale upon execution against one Joseph Manning, the former owner of said premises, which sale was void for certain reasons specified, but principally because there was no seal upon the execution. Manning was permitted to intervene, and filed an answer and cross-bill, claiming to be the owner of the premises, and setting up certain defenses, which will be referred to hereafter, and asking for affirmative relief. On the trial of the cause in the court below a decree was rendered in favor of Courtney. Manning and Taylor appeal to this court. The title to the premises in question is in Manning, unless it has been divested by the tax deed held by Courtney, or the sheriff's deed held by Taylor. These questions will be considered in their order.

It appears from the record that on the thirty-first day of December, 1875, one Charles L. Harris purchased the premises in question at private tax sale, for the taxes due thereon for the year 1874, being the sum of $202.05. There is testimony tending to show that there was an agreement between Harris and Manning that the latter was to be permitted to redeem the premises by paying the amount of taxes and interest as fast as he was able; and the following receipt was given in evidence:

“$79.20. Rec'd, Lincoln, Neb., Sept. 22, 1876, of Joseph Manning, Esq., the sum of seventy-nine 20-100 dollars, to apply on redemption of lot No. 18, in block No. 56, Lincoln, Neb., sold for taxes of 1879, on the thirty-first day of December, 1875.

M. R. JOHNSON,

By W. W. WILSON, Agent.”

Manning appears to have been unable to raise money to pay the remainder of the redemption money, and on the thirteenth of February, 1878, Harris obtained a tax deed from the treasurer of Lancaster county and entered into possession; and such possession continued until he conveyed to Courtney, on the twenty-third of December, 1879. Courtney then took possession under said deed, and has remained in possession, receiving the rents and profits ever since. The deed from Harris to Courtney is a quitclaim, and contains this provision: “Provided, said D. G. Courtney and his assigns, executors, and administrators, shall and will save said Charles L. Harris harmless from any and all claim or claims by any person or persons whomsoever for rents received, or for the use and occupation of said premises, prior to the first day of January, 1880, and said rents and profits up to that date shall be applied on taxes paid, repairs done on said premises while the same was occupied by said Harris under tax and purchase for taxes.”

Harris received the rents and profits of the premises up to the time he conveyed to Courtney. Courtney claims that he and his grantor have been in exclusive adverse possession of said premises for three years, four months, and thirty-three days, under their tax deed, before the commencement of this action, and that thereby he has obtained an absolute title under the special limitation of three years of the revenue law. Section 105 of the revenue law of 1869, as amended in 1871, was as follows: “Any person or persons, or county, purchasing any lands or town lots at any private sale for taxes levied on lands sold under the provisions of this act, shall, after the lapse of three years from the time of recording the treasurer's deed therefor, acquire a complete and perfect title thereto, and all other persons claiming title to any such lands or lots, shall, after the lapse of three years from said date, be debarred from commencing or sustaining any action in any court of this state to recover possession of the same, and the courts of this state are hereby prohibited from entertaining or sustaining any such action.” This act was repealed in 1879 without a saving clause as to limitations, and the following section enacted: “No action for the recovery of real property sold for non-payment of taxes shall lie unless the same be brought within three years after the treasurer's deed is made as above provided: provided, that where the owner of such real property, sold as aforesaid, shall, at the time of such sale, be a minor, or insane, or convict in a penitentiary, or under any other legal disability, three years after such disability is removed shall be allowed such person, his heirs or legal representatives, to bring such action.”

In State v. McColl, 9 Neb. 203, [S. C. 2 N. W. REP. 213,] where the new act was copied verbatim from the old, it was held to be a mere continuation of the former act; that there was no change in the law; citing Fullerton v. Spring, 3 Wis. 671;Wright v. Oakley, 5 Metc. 406. And this rule undoubtedly applies in all cases where the new law contains the same provisions as the old. But where the provisions of the two acts are entirely dissimilar, we are not aware of any case in which it is held that, upon the repeal of the old law, without a saving clause, the new act will continue the provisions of the old in force. By the terms of the former act it is declared that after the lapse of three years from the time of recording the treasurer's deed the purchaser shall acquire a complete and perfect title to lands purchased, and the claimant shall be debarred from bringing, or the courts from sustaining, an action to recover such land. By the present law the action must be...