Towle v. Holt
| Decision Date | 20 March 1883 |
| Citation | 15 N.W. 203,14 Neb. 221 |
| Parties | CATHARINE TOWLE ET AL., PLAINTIFFS IN ERROR, v. CHARLES B. HOLT ET AL., DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Gage county. Tried below before WEAVER, J.
REVERSED AND REMANDED.
A. H Babcock and J. H. Broady, for plaintiffs in error.
Including two separate and distinct tracts in deed creates no presumption that they were assessed and sold as one tract. Laws of 1869, § 62, p. 203. Nelson v. Rountree, 23 Wis. 371. Silliman v. Frye, Gilm., 664. The deed was admissible. As to seal, see Huey v. Van Wie, 23 Wis. 613. Putney v. Cutler, 11 N. W. R., 437. Greenleaf on Evidence, § 503. Gen. Stat., § 32, p 237. On limitation of actions, cited Cooley on Taxation, 376. Blackwell on Tax Titles, § 564. Angell on Limitations § 22. Scott v. Hickox, 7 Ohio St. 93. Bradstreet v. Huntington, 5 Peters 402. Jackson v. Diffendorf, 3 Johns. 267. Griffins v. Totinham, 1 Watts & Serg., 488. Burroughs on Taxation, 343. Pillow v. Roberts, 13 How. 472. On admission of evidence of rents and profits, cited: Sedgwick & Wait on Trial of Title to Land, § 678. Nixon v. Porter, 38 Miss. 401. Davis v. Lark, 30 Wis. 308. Jackson v. Loomis, 4 Cow. 168. As to improvements, cited: Howard v. Lamaster, 11 Neb. 582.
R. W. Sabin and J. A. Smith (Walter J. Lamb with them), for defendants in error.
Deed was properly excluded. Blackwell on Tax Titles, 401. Carlisle v. Longworth, 5 Ohio 369. Jones v. Devore, 8 Ohio St. 430. Haller v. Blaco, 10 Neb. 36. Miller v. Hurford, 11 Neb. 383. Grimm v. O'Connell, 54 Cal. 523. Cooley on Taxation, 324. Atkins v. Kinnan, 10 Wend. 240. Lain v. Cook, 15 Wis. 446. Maxey v. Clabaugh, 1 Gilm., 26. Smith v. Hileman, 1 Scam., 323. Harrington v. City of Worchester, 6 Allen 578. Ferris v. Coover, 10 Cal. 632. Mayo v. Haynie, 50 Cal. 73. As to description of two tracts in one deed, see Hall v. Dodge, 18 Kan. 279. Walker v. Moore, 2 Dillon 256. Statute of limitations does not run. Sutton v. Stone, 4 Neb. 319. Waterson v. Devoe, 18 Kan. 223. McGavock v. Pollock, 13 Neb. 536. Howard v. Lamaster, 11 Neb. 582. Cogel v. Raph, 24 Minn. 197. Wofford v. McKinnie, 23 Tex. 36. Rents and profits. Dungal v. Van Phul, 8 Iowa 269. Wolcott v. Townsend, 49 Iowa. 456. Improvements. Buchanan v. Dorsey, 11 Neb. 376.
This is an action to recover possession of the S. E. 1/4 of section 27, T. 4, R. 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 plaintiff's title, they claim to be 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: " R. W. Sabin, one of the plaintiffs below, testified: "The east half of the south-west quarter 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 defeat the said title, either that the land was not subject to taxation at the date of the sale, that the taxes had been paid, that the land had never been assessed for taxation, that the land had not been advertized for sale as required by law, or that the same had been redeemed according to the laws of the state, and that such redemption was made for the use and benefit of persons having the right of redemption under the laws of this state; and in no event shall a decree or judgment be rendered against the purchaser until the claimant shall have paid to said purchaser, his heirs or assigns, the full value of any and all improvements he has put upon said real estate, which shall be determined by arbitration according to the laws of this state, or by trial by jury in any court of competent jurisdiction, and shall also have paid over to the county treasurer for the use of the purchaser, in case judgment be rendered against him, the amount necessary to redeem the land at that date, at the same rates as provided by law in cases where the land is redeemed within two years from the date of sale; provided, that no person shall be compelled to pay for any improvements made prior to the date of the treasurer's deed."
These provisions are applicable to all cases where improvements have been made under tax deeds, and are in addition to the remedy given by the occupying claimant's act. To entitle the party to recover it is not necessary that his tax deed should be valid, because if that was the case he would need the aid of no statute to enable him to recover for his improvements, as he would have the entire title.
The tax deed was objected to: First, Because it does not appear that the land was subject to...
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