Welton v. Merrick County

• Decision Date: 28 May 1884
• Citation: 20 N.W. 111,16 Neb. 83
• Parties: ALBERT WELTON, PLAINTIFF IN ERROR, v. THE BOARD OF COMMISSIONERS OF MERRICK COUNTY, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

20 N.W. 111

16 Neb. 83

ALBERT WELTON, PLAINTIFF IN ERROR, v. THE BOARD OF COMMISSIONERS OF MERRICK COUNTY, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 28, 1884

ERROR to the district court for Merrick county. Tried below before GEORGE W. POST, J.

AFFIRMED.

Webster & Watson (James E. Philpott with them), for plaintiff in error.

A Ewing, for defendant in error.

OPINION

MAXWELL, J.

In July, 1876, the plaintiff paid taxes due for 1875 on certain real estate owned by him in Merrick county, the aggregate amount being the sum of $ 161.92. In 1881 or 1882--the date does not appear--the plaintiff filed a claim for the repayment of the taxes in question with the board of county commissioners of Merrick county. The board refused to allow the claim, and the plaintiff appealed to the district court which sustained a demurrer to the petition, and dismissed the action. The judgment of the district court is now assigned for error.

I. The allegations of the petition as to the illegality of the tax are as follows: "Your petitioner would further represent that said assessment and tax were erroneous and illegal for the following reasons, to-wit: that said land was at the time of said assessment and levy of tax unpatented railroad lands and not subject to taxation; that your petitioner was not aware of the illegality of said taxes at the time payment was made, nor did he have knowledge of their illegality prior to the 1st day of December, 1881."

It is very clear that there is no error in the ruling of the court below. Even if a cause of action had existed in favor of the plaintiff upon the payment of the taxes in controversy, it was barred by the statute of limitations. If a party with ordinary care and attention could have detected even fraud, he will be charged with actual knowledge of it; that is, the mere fact that a party is not aware of the existence of certain matters, where there is no concealment, will not prevent the running of the statute of limitations. Angell on Lim., § 187. But in this case there is no pretense of fraud.

II. The payment was purely voluntary. The case clearly falls within that of Foster v. Pierce County, 15 Neb. 48, 17 N.W. 261.

III. There is no allegation that the railroad company was not in fact the owner of the land at the time it sold the same to the plaintiff, or that the plaintiff is not the owner. The fact that the railroad company had failed to receive a...