Towle v. Holt

• Decision Date: 20 March 1883
• Citation: 14 Neb. 221,15 N.W. 203
• Parties: TOWLE AND OTHERS v. HOLT AND ANOTHER.
• Court: Nebraska Supreme Court

14 Neb. 221

15 N.W. 203

TOWLE AND OTHERS

v.HOLT AND ANOTHER.

Supreme Court of Nebraska.

Filed March 20, 1883.

Error from Gage county.

A. H. Broady and A. H. Babcock, for plaintiffs.

Sabin & Smith and W. J. Lamb, for defendants.

MAXWELL, J.

This is an action to recover possession of the S. E. 1/4 of section 27, township 4, range 6 E., in Gage county, and for the rents and profits of the same. The defendants below made a number of defenses, among which, after a denial of the plaintiffs' title, they claim to be the owners of said land under a tax deed to one Towle, dated November 28, 1873; that said Towle took possession of said land under said deed, and cultivated and improved the same, and had open, exclusive, notorious, adverse possession thereof for more than three years under said deed, and thereby acquired a complete and perfect title to the same. There is also an allegation that he paid taxes thereon, amounting, with interest, to the sum of $600. The plaintiffs, in their reply, deny in substance the new matter contained in the answer, but say: “that a pretended assessor of the pretended precinct in which said land was situated, on or about the first day of April, A. D. 1870, made a pretended assessment of said lands for the year 1870, by copying a pretended assessment roll of said Gage county for the year 1869, and in no other way; that said pretended assessor who made said pretended assessment of said premises did not take and subscribe an oath to perform the duties of assessor in and for said precinct for said year as required by law or in any manner, nor did he list or have listed said property, or any property, for taxation of said precinct for the year 1870.” This will be adverted to hereafter. There is no denial except in a general way that the defendants paid the taxes, as stated in the answer. On the trial of the cause a verdict was returned in favor of Holt and Sabin for the possession of the land, and for the sum of $515.60, rents and profits, and the defendants were allowed nothing for their improvements, nor for taxes paid.

It appears from the record that Albert Towle purchased the land in controversy at public sale in 1871, for the taxes due thereon in the year 1870; that in November, 1873, and after the time for redemption had expired, he obtained a tax deed for said land; that the entire tract at that time was unbroken prairie, and that he broke up and cultivated about 125 acres of the same. All the testimony tends to show that the entire value of the rents and profits was derived from that portion of the land broken up by Towle. Charles L. Schell, a brother-in-law of Sabin, called for the plaintiff below, testified:“I would put such tillable land at two dollars to two dollars and a half per acre, cash rent. I don't know whether it was all under cultivation.” R. W. Sabin, one of the plaintiffs below, testified: “The E. 1/2 of the S. W. 1/4 is mostly broken, probably all of it; there may be a little over 120 acres broken.” These witnesses were the only ones produced by the plaintiff.

The condition of the case, therefore, is this: Towle purchased the land at tax sale and obtained a deed for the same. He thereupon broke up about 125 acres and cultivated the same up to the time of his death, which occurred in 1879, and paid the taxes due thereon; that since the death of Towle his heirs, who were the defendants below, have received the rents and profits for which the judgment for $515.60 was rendered against them, while they were not permitted to recover for taxes paid, nor for the costs of the breaking which produced the rents and profits. Can such a judgment be sustained? The case must be governed mainly by the provisions of the revenue law of 1869. Section 104 of that act reads as follows: “Deeds hereafter executed by the county treasurer for real estate, sold for taxes, shall be prima facie evidence in all controversies and suits in relation to the rights of the purchaser, his heirs or assigns, to the land thereby conveyed, of the following facts: First, that the land conveyed was subject to taxation, and had been assessed at the time and in the manner required by law; second, that the taxes were not paid at any time before the sale; third, that the lands conveyed had not been redeemed from the sale at the date of the deed; fourth, that the land was advertised for sale in the manner required by law; fifth, that the land was sold for taxes, as stated in the deed; sixth, that the grantee in the deed was the purchaser, or his or her assignee; seventh, that the sale was conducted in the manner required by law, and this shall apply as well to private as to public sales made by the treasurer for taxes, and in all suits involving the title to land claimed and held under and by virtue of a deed executed by the treasurer as aforesaid. The party claiming adverse title shall be required to prove, in order to...