Watson v. Ulbrich

• Decision Date: 06 October 1885
• Citation: 24 N.W. 732,18 Neb. 186
• Parties: JOHN C. WATSON, APPELLANT, v. PETER ULBRICH, APPELLEE
• Court: Nebraska Supreme Court

24 N.W. 732

18 Neb. 186

JOHN C. WATSON, APPELLANT, v. PETER ULBRICH, APPELLEE

Supreme Court of Nebraska

October 6, 1885

APPEAL from the district court of Otoe county.Heard below before POUND, J.

AFFIRMED.

John C Watson, for appellant.

Groff & Montgomery, for appellee.

OPINION

MAXWELL, J.

On the 4th day of June, 1874, one H. H. Gray obtained a tax deed from the treasurer of Otoe county for the north-west quarter of section 34, township 7 north, range 13 east, in Otoe county.On the 8th day of June, 1876, Gray obtained from the treasurer of said county a second tax deed for said land.On the 3d day of February, 1878, a third tax deed for the above described lands was issued to Gray by the treasurer of said county.All of these deeds were duly recorded.The three deeds were made in pursuance of a sale of the land for taxes for the years 1868, 1869, 1870, 1871, and 1872.

In February, 1878, Gray brought an action in equity against Leonard A. Crandall, in the district court of Otoe county, to quiet his title to said land.Crandall being a non-resident of the state an affidavit for publication was duly made and filed, and notice given by publication.

In April, 1878, a decree was rendered wherein the court finds "that he, Gray, has the legal estate in fee simple in and is entitled to the possession of the same; that neither the defendant nor any person since the commencement of this action has any estate in or is entitled to the possession of said real estate or any part thereof; and that the plaintiff ought to have his title and possession quieted as against the defendant as prayed for in his petition herein," and a decree was rendered in favor of Gray, and excluding Crandall from any right, title, or interest in the property.

On the 25th of October, 1878, Gray sold and conveyed the land in question to Holland, and Holland, in December, 1881, in consideration of the sum of $ 1,700, sold and conveyed said land to the defendant.

In March, 1883, and within a few days of five years from the date of the decree, and more than a year after Ulbrich's purchase, Crandall served a notice upon Gray who at that time lived in Wisconsin, of his application to open the decree.On the hearing of the application Crandall was permitted to answer upon payment of costs.He thereupon filed an answer as follows: "Now comes the said defendant, Leonard H. Crandall, and for answer to plaintiff's petition denies that plaintiff is the owner of the north-west quarter of section thirty-four, in town seven, range thirteen east, in Otoe county * * * Denies that he has any valid tax deed to or for said land.Denies that plaintiff ever made any valid purchase of said land for taxes of any year in 1869 or any other years.Denies that there was any valid sale of said land for taxes made in the year 1869 in 1874, or any other years, for the taxes of 1872 or any other year.Denies that any valid deed was ever executed by the treasurer of Otoe county for the tax of any year whatever, or at any time whatever."

Defendant says, "that he is the owner of said land, and asks that plaintiff's bill be dismissed, and that this defendant may have judgment for costs."Gray thereupon dismissed the action without prejudice.

On the 12th day of March, 1883, Crandall conveyed all his interest in the land in question to one James C. Young, who, in December, 1883, conveyed to the plaintiff, who thereupon brought this action, wherein he"prays that each of said deeds as aforesaid made be declared of no effect, and that they be set aside and held for naught, and that plaintiff have his title quieted to said premises, and for such other relief as he may be justly and equitably entitled to."Issues were joined, and on the trial the court found in favor of the defendant, and dismissed the action.The plaintiff appeals.

The principal question to be determined is, whether or not the decree in favor of Gray rendered upon constructive service is valid until set aside.No objection is made to the service or any of the proceedings connected with it.The real estate in controversy was within the jurisdiction of the district court, and that court had authority in a proper case to render the decree confirming the title of Gray.

In Castrique v. Imrie, L. R.4 H. L. 414-429, Mr Justice Blackburn says, "We think the...