Wilson v. Butler Cnty.

• Decision Date: 13 June 1889
• Citation: 26 Neb. 676,42 N.W. 891
• Parties: WILSON v. BUTLER COUNTY.
• Court: Nebraska Supreme Court

26 Neb. 676

42 N.W. 891

WILSON

v.BUTLER COUNTY.

Supreme Court of Nebraska.

June 13, 1889.

Syllabus by the Court.

1. Where a county treasurer sells lands for taxes which were not liable to taxation, and upon which no taxes were due, the tax purchaser may recover from the county the amount paid by him, with interest thereon.

2. Where a county has caused land which is not taxable to be assessed, and taxes levied thereon, under which the land is afterwards sold, and attempted to be conveyed, and the county from year to year afterwards causes said land to be assessed, and taxes levied thereon, a tax purchaser may pay such taxes to protect his supposed lien, and upon the failure of his interest in the land may recover the amount he has so paid, with interest thereon, from the county.

3. Where a county has caused certain real estate to be assessed, and taxes to be levied thereon, a tax purchaser may presume that the property was taxable, and is not required to make a further examination of that fact as a condition of maintaining an action against the county for the purchase money and interest, and taxes thereafter paid to protect the tax lien which was believed to exist.

Error to district court, Butler county; POST, Judge.Waldo Bros., for plaintiff in error.

George P. Sheesley, for defendant in error.

MAXWELL, J.

This is a proceeding in error to reverse the judgment of the district court of Butler county. The case was submitted to the court below on the petition and answer, and judgment was rendered in the plaintiff's favor for $74.17. The answer “admits the allegations” contained in the petition, “except the inferences and conclusions of law.” It is alleged in the petition:

“(1) That on or about the first Monday in February, 1873, the county commissioners of defendant furnished the assessor of Ulysses precinct of said defendant a list of land which they represented to be taxable in said precinct. That said list wrongfully and erroneously contained the south half of the south-east quarter, and the north-east quarter of the south-east quarter, of section twenty-eight, in township thirteen north, of range two east, of the sixth principal meridian, in Butler county, Neb. That said assessor did value said lands, and returned said valuation, with that of other lands, on or about the second Monday in April, 1873, to the county clerk of said defendant. That on or about the first Monday in July, 1873, the county commissioners of defendant did levy taxes for the year 1873 on all taxable property in said Butler county by mistake, and erroneously and wrongfully including with said taxable property the aforesaid land. That said county clerk wrongfully and erroneously extended the taxes for the year 1873 against said land as follows, to-wit: Total, $940. That on the 1st day of May, 1874, said taxes for 1873, not having been paid, the same became delinquent. That on or about the first Monday in February, 1874, the county commissioners of defendant furnished the assessor of Ulysses precinct of said defendant a list of lands which they represented to be taxable in said precinct. That said list by mistake, and erroneously and wrongfully, contained said above-described land. That said assessor did value said lands, and returned said valuation, with that of other lands, on or about the second Monday in April, 1874, to the county clerk of said defendant. That on or about the first Monday in July, 1874, the county commissioners of defendant did levy taxes for the year 1874 on all taxable property in said Butler county, by mistake, and erroneously and wrongfully, including with said taxable property the aforesaid land. That said county clerk of defendant by mistake, and erroneously and wrongfully, extended the taxes for the year 1874 against said land, as follows, to-wit: Total, $16.99. That on the 1st day of May, 1875, said taxes for the year 1874 not having been paid, the same became delinquent. That on the first Monday in September, 1875, said taxes for the years 1873 and 1874 still remaining unpaid, said land was by mistake, and erroneously and wrongfully, offered for sale by the treasurer of defendant, and on September 6, 1875, was by mistake, and erroneously and wrongfully, sold by the treasurer of defendant to one F. A. Osborn for said delinquent taxes for the years 1873 and 1874, for the sum of $28.15, which sum of $28.15 the said F. A. Osborn paid said treasurer therefor; that being the amount of taxes, interest, and legal expenses claimed by the said treasurer of defendant to be due against said land for the years 1873 and 1874. That there was no tax due against said land at the time of said sale and purchase, for the reason that said land at the time it was so assessed, and at the time of said levy and sale, was land belonging to the United States, and not liable to taxation; and that said land was by mistake, and erroneously and wrongfully, placed upon said tax-lists for 1873 and 1874 by defendant's commissioners and defendant's assessors. That taxes for the years 1873 and 1874 were by defendant's commissioners wrongfully levied against said land. That said taxes for the years 1873 and 1874 were by defendant's county clerk, by mistake, erroneously and wrongfully, extended against said land; and that said land was by defendant's treasurer by mistake, and erroneously and wrongfully, sold for taxes for the years 1873 and 1874, said land being at all of the aforesaid times United States government land, and not liable to taxation.

(2) That said land was by defendant, again by mistake, and wrongfully and erroneously, assessed and taxed in the aforesaid manner for the year 1875, and while said land still remained United States government land, and not taxable; and said F. A. Osborn, to protect his said supposed tax-title and lien, as compelled and required by law, paid on May 5, 1876, to defendant's treasurer, as subsequent taxes on said land for the year 1875, the sum of $23.92.

(3) That said land was by defendant, again by mistake, and wrongfully and erroneously, assessed and taxed in the aforesaid manner for the year 1876, and while said land still remained United States government land, and not taxable; and said F. A. Osborn, to protect his said supposed tax-title and lien, as required and compelled by law, paid on May 30, 1877, to the defendant's treasurer, as subsequent taxes on said land for the year 1876, the sum of $16.42.

(4) That on or about the 8th day of May, 1878, the said F A. Osborn did sell, assign, and transfer his certificate from defendants' treasurer of said tax-sale and purchase, with all rights thereunder, unto one Charles L. Flint.

(5) That on or about the 8th day of May, 1878, the treasurer of defendant, for and on account of said tax-sale and purchase, did erroneously and wrongfully convey said land by tax-deed unto said Charles L. Flint, which deed is recorded in Book 7 of Deeds, at page 23, in the office of the clerk of said Butler county. That said Charles L. Flint and wife, by deed duly executed and acknowledged, and recorded in said county clerk's office in Book 7 of Deeds, at page 459, granted and conveyed unto one Elizabeth Murphy all their right and title to said land, and said tax-title, and all rights thereunder. That said land was by defendant again, by mistake, and wrongfully and erroneously, assessed and taxed in the aforesaid manner for the years 1877, 1878, and 1879, and while said land still remained the...