Thomas v. Flynn, 34662

• Decision Date: 18 December 1959
• Docket Number: No. 34662,34662
• Citation: 100 N.W.2d 37,169 Neb. 458
• Parties: James D. THOMAS, Appelle, v. John A. FLYNN, Appellant, Impleaded with Ralph K. Cotton et al., Appellees.
• Court: Nebraska Supreme Court

Page 37

100 N.W.2d 37

169 Neb. 458

James D. THOMAS, Appelle, v. John A. FLYNN, Appellant Impleaded with Ralph K. Cotton et al., Appellees.

No. 34662.

Supreme Court of Nebraska.

Dec. 18, 1959.

Syllabus by the Court

1. The title to land becomes complete in the adverse occupant when he and his grantors have maintained an actual, continued, notorious, and adverse possession thereof, claiming title to the same against all persons, for 10 years.

2. If the adverse possession of the occupant is a continuation of the possession of a prior adverse possessor claiming title, and such occupant claims title from such prior possessor, then the possession of the occupant may be tacked to that of such prior possessor.

3. The words in actual possession or occupancy, as contained in section 77-1832, R.R.S.1943, mean such occupancy or possession by a person as would put an ordinarily prudent man on notice of that fact by observation of the premises involved.

Ross & O'Connor, Omaha, for appellant.

Martin A. Cannon, Omaha, for Thomas.

John C. Burke, Deputy County Atty., Omaha, for Cotton et al.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

WENKE, Justice.

On July 17, 1958, James D. Thomas brought this action in the district court for Douglas County against John A. Flynn, Ralph K. Cotton, Samuel Howell, Treasurer of Douglas County, and Douglas County. The purpose of the action is to have declared null and void a certain 'Treasurer's Tax Deed' from the county treasurer of Douglas County to defendant Ralph K. Cotton, insofar as such deed seeks to convey to Cotton Lot K, Kincade Survey, a subdivision of Section 14, Township 15 North, Range 13 East of the 6th P.M., in Douglas County, Nebraska, as surveyed, platted, and recorded, to which tract we shall hereinafter refer as Lot K; to authorize plaintiff to redeem Lot K from the tax sale thereof; and for an order finding plaintiff to be the sole owner of Lot K. The basis on which this relief is asked is that the tax deed to Cotton is void as to Lot K because the notice required by Section 77-1831, R.R.S.1943, which section 77-1832, R.R.S.1943, requires 'shall be made on every person, in actual possession or occupancy of the land' for which a tax deed is intended to be asked, was never served upon the plaintiff or his predecessors in title who, it is claimed, were at all times in actual possession and occupancy of Lot K as the owners by reason of adverse possession.

Answer was filed by the defendant John A. Flynn wherein he claims he is the owner of Lot K, title thereto having been quieted in him on April 13, 1954, by decree rendered by the district court for Douglas County, Nebraska, of which, he alleges, plaintiff and his predecessors in interest had knowledge for over 2 years prior to the institution of this suit. Plaintiff replied to this contention, alleging that neither he nor his predecessors in title were ever made parties to that action nor was any service of summons ever had upon him or any of them, although they were in actual possession and occupancy of Lot K at all times pertinent to defendant Flynn's action to quiet title.

The trial court found generally for the plaintiff and rendered a decree accordingly, holding the treasurer's tax deed as to Lot K to be null and void; that plaintiff's rights to Lot K were not affected by defendant Flynn's action to quiet title; that there was due defendant John A. Flynn the sum of $251.39 for taxes he had paid, upon payment of which Lot K should stand redeemed from tax sale; that the sum of $326.76, deposited by the plaintiff with the clerk of the court for the purpose of being used to redeem Lot K from the tax sale, could be used to pay the amount found due to Flynn; and that plaintiff is the sole owner of Lot K. Defendant Flynn filed a motion for new trial and this appeal was taken by him from the overruling thereof.

Primarily there are two questions raised by this appeal. First, did Ralph K. Cotton sufficiently comply with the statutory requirements in obtaining his treasurer's tax deed to Lot K so as to divest the Thomases of their rights to redeem from the tax sale thereof as section 77-1824, R.R.S.1943, provides they may; and secondly, did appellant, in his action to quiet title, obtain jurisdiction of the Thomases so as to divest them of whatever rights or interests they then had in and to Lot K?

The burden of proof was on appellee. This is particularly true in view of the provisions of section 77-1842, R.R.S.1943. This being an action in equity, it is the duty of this court to try the issues de novo and reach an independent conclusion as to the merits thereof without reference to the findings of the district court. Section 25-1925, R.R.S.1943. However, as stated in Jack v. Teegarden, 151 Neb. 309, 37 N.W.2d 387, 391: "* * * in a case wherein the trial court has made a personal examination of the physical facts (which the trial court did here), and where, in the same case, the oral evidence in respect of material issues is so conflicting that it cannot be reconciled, this court will consider the fact that such examination was made and that such court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite."

The foregoing has particular application to the testimony of Stella Thomas as to the condition of the property after the flood in April of 1952 and what was thereafter done thereto and thereon by the Thomases to put everyone on notice that the property was actually occupied by someone claiming rights therein and that of Robert E. O'Connor, attorney at law for Ralph K. Cotton, as to what he saw and found out when he examined the property shortly before making an affidavit in Cotton's behalf upon the basis of which notice, as provided for by section 77-1834, R.R.S.1943, was published in The Daily Record of Omaha.

Ben Thomas and Stella Thomas, being then husband and wife, moved onto Lot K about September 1, 1926. At that time their family consisted of a daughter, Stella Opal, about 4 years of age, and a son, appellee James D. Thomas, about 1 year old. There was a two-room dwelling on the property.

When they first moved onto these premises the Thomases did so under an oral agreement of purchase with a party who claimed to be the owner thereof. Shortly thereafter the Thomases came to the conclusion that the seller was a phony and actually had no interest in Lot K. Thereafter they made no further payments under the oral agreement but continued to occupy the premises as their home. They built substantial additions to the house, adding a bedroom, a kitchen, and a porch thereto. They also raised the house, dug a basement thereunder, and put it on a permanent concrete and stone foundation. The record shows they improved the house until it was a very good home considering the area in which it was located, being along the Missouri River and east of the dike along the west side thereof; that is, it was in the flood basin of the Missouri River. They built and maintained fences along both the north and south sides of Lot K. The Thomases continued to live on this property and make it their home until forced to vacate it by a flood in April of 1952.

'The title to land becomes complete in the adverse occupant when he and his grantors have maintained an actual, continued, notorious, and adverse possession thereof, claiming title to the same against all persons, for ten years.' Walker v. Bell, 154 Neb. 221, 47 N.W.2d 504, 505.

We think the record established that by adverse possession the Thomases became the owners of Lot K sometime in 1937 and continued to be such although the flood forced them from the premises in April of 1952. Ben Thomas died intestate on March 15, 1958. The Thomas family has always consisted of the father, mother, and the two children hereinbefore referred to. After the father died the mother and daughter, on July 15, 1958, quitclaimed to the son, appellee herein, whatever interest they had in and to Lot K. In this situation the following principle applies to appellee: 'If the adverse possession of the occupant is a continuation of the possession of a prior adverse possessor claiming title, and such occupant claims title from such prior possessor, then the possession of the occupant may be tacked to that of such prior possessor.' Walker v. Bell, supra.

In 1946 Lot K was, for the first time, listed and assessed for the purpose of taxation. It was assessed in the name of John Doe, there being no owner thereof listed in the records of Douglas County at that time. Taxes were levied thereon for that and all subsequent years. The taxes assessed and levied on Lot K for the years 1946 and 1947 became delinquent and were thereafter, on July 20, 1949, sold to the County of Douglas and subsequently, on September 16, 1952, the 'Certificate of Tax Sale' issued to the county was assigned by the county treasurer of Douglas County to Ralph K. Cotton, he having paid the amount of taxes, with interest owing thereon, as shown on the face of the certificate. See section 77-1809, R.R.S.1943.

The flood of April 1952, which forced the Thomases to vacate their home, came up so quickly that they had to vacate by boat and could only take with them dishes, bedding, and personal apparel. They were forced to leave all their furniture in the house. The water came up so high that only the roof of the house remained out of the floodwaters. The floodwaters tore the two outer doors from the house and carried away some of the furniture. It saturated the walls with muddy water and left mud all over the floor of the house and in the basement. After the flood the Thomases intended to return to the home to live but found, because of the condition in which the flood had left the house and due to the poor health of Mr. Thomas, it was not possible for them to do so. It appears that Mr. Thomas was at that time...