Weston v. Meyers

• Decision Date: 04 May 1895
• Citation: 63 N.W. 117,45 Neb. 95
• Parties: WESTON v. MEYERS ET AL.
• Court: Nebraska Supreme Court

45 Neb. 95

63 N.W. 117

WESTON

v.MEYERS ET AL.

Supreme Court of Nebraska.

May 4, 1895.

Syllabus by the Court.

Appellant in a suit in equity alleged in his petition that he was the owner of certain real estate, and entitled to the possession thereof; that appellee claimed an interest in said premises by virtue of a tax deed; that “there was no legal and sufficient levy of the taxes” for which said real estate was sold, and on which said tax deed was based. He prayed that the tax sale and deed, and appellee's title by virtue thereof, might be decreed void; that the title to the real estate might be quieted in, and the possession of the premises awarded to, appellant. The petition contained no offer to pay appellee any sum the court might find he had paid to purchase the premises at the tax sale, or for taxes subsequently paid on the premises. Held:

(1) That the averment in the petition that “there was no legal and sufficient levy of the taxes” was a mere conclusion.

(2) That the tax levied became by virtue of the statute a lien on the real estate until paid, or barred by law.

(3) That the appellee, by his purchase of the real estate for such taxes, although the sale was an invalid one, became thereby subrogated to the right of the public, and this right was a lien upon the real estate for the taxes paid, until paid or barred.

(4) That he who asks equity must do equity, and as the appellant did not offer in his petition to pay the appellee whatever sum the court might find he had paid out for the purchase of the premises at the tax sale, nor for legal taxes subsequently paid on the premises, the petition did not state facts entitling the appellant to equitable relief.

Appeal from district court, Otoe county; Chapman, Judge.

Action to quiet title by Addison E. Weston against Josephine Meyers and another. Defendants had decree, and plaintiff appeals. Affirmed.C. W. Seymour, for appellant.

John C. Watson and John A. Rooney, for appellees.

RAGAN, C.

This suit was brought in the name of Addison P. Weston to the district court of Otoe county against Josephine Meyers and her husband. The petition alleged that Weston was the owner of the legal title, and entitled to the immediate possession, of certain described property in the city of Nebraska City; that the defendant Josephine Meyers set up and claimed an interest in and to said premises adverse to the interest of Weston; that Meyers was the owner and holder of a certain pretended tax deed to the premises, dated November 27, 1885; that said pretended tax deed purports to be based upon the sale of said premises for the alleged delinquent taxes for the year A. D. 1879; that the pretended sale of said premises for said year was wholly illegal and void; that the premises were not properly assessed for taxes; “and that there was no legal and sufficient levy of taxes for said year.” The petition then averred that said premises were not offered at public sale for the taxes for the year 1879; that the treasurer of the county did not make a return of his sale of lands for taxes of said year; that the treasurer did not file in the office of the county clerk a notice of sale of lands for taxes for said year, nor a certificate of the advertisement, verified by affidavit; that during the years 1880, 1881, 1883, 1884, and 1885, Weston was a resident of the state of Nebraska, and that he was not served with a personal notice before the time of redeeming of said tax sale expired, or at any other time, and that in the year 1879 he was the owner of personal property in Cass county, where he then resided, out of which the taxes due from him on said lands could have been collected; and that the treasurer of said Otoe county made no attempt whatever to collect said taxes out of his personal property. The prayer of the petition was that the parties made defendants might be compelled to show their title to the real estate, that such title might be determined null and void, that the pretended tax sale of 1879 might be declared null and void, that the tax deed might be set aside,...