Wygant v. Dahl
| Decision Date | 31 May 1889 |
| Citation | 26 Neb. 562,42 N.W. 735 |
| Parties | WYGANT v. DAHL |
| Court | Nebraska Supreme Court |
1. In an action quia timet, for the purpose of removing the cloud cast by a tax-title from real property, and to quiet the title in him, it appeared that the plaintiff, and those under whom he claimed, had been in the exclusive, uninterrupted possession of the land for more than 10 years, and that the taxes had accrued and said tax-deed been executed more than 10 years before the bringing of the action. Held, that as the plaintiff sought equitable relief from said taxation and tax-deed, notwithstanding the statute of limitations, he must, as a condition of relief, do equity by paying such taxes and interest.
2. In such action, where a decree is rendered upon an answer or cross-petition of a defendant for such taxes, interest, and disbursements, or either of them, an attorney's fee equal to 10 per cent. thereon will be awarded.
3. Where the general owner of real property receives a deed therefor from a person holding a tax-title on said property, the title conveyed by such deed will become merged in the title of such general owner.E. F. Warren, for appellant.
C. W. Seymour, for appellee.
This case is brought to this court on appeal from the judgment of the district court of Otoe county. On May 5, 1888, the plaintiff commenced his action, alleging that he was then, and for 17 years past, with those under whom he claimed title, had been, in the peaceable possession of certain real estate in said county,--lot No. 10, in block No. 8, in Nebraska City proper; that his possession has been open, notorious, hostile, and adverse to all the world, and especially to the claim and title of the defendant, who for 17 years had exercised no acts of ownership, and had not been in possession of any part of said lot; that the plaintiff claims title in fee-simple to the same, and that the defendant claims an estate or an interest adverse to the plaintiff, which is unfounded in law, and is a cloud upon the plaintiff's title, and is derived from deeds executed to the defendant or his grantors, and recorded in the office of the clerk of said county; that the claim of the defendant is without any right whatever. It is therefore prayed that he be required to set forth the nature of his claim, that all adverse claims to that of the plaintiff be determined, and the cloud upon his title be removed, etc.
The answer of the defendant, in the form of a cross-bill, alleges and sets up that he is the owner in fee-simple of the lot described, and claims title thereto adverse to the plaintiff; that he derives his title from the facts that said lot was subject to taxation for the years 1860, 1862, 1863, and 1864, and was legally assessed for taxation for said years; that the tax for the same was legally levied thereon, and was not paid by the plaintiff, but became and remained delinquent until the sale of said lot for the payment of the delinquent taxes thereon; that said lot was legally advertised for sale for the payment of such delinquent taxes, aud was duly offered for sale, and due return was made thereof to the county clerk of said county by the treasurer of said county within the time prescribed by law; that said lot was sold at private sale at the said county treasurer's office for said delinquent taxes to John H. Ahrends, August 17, 1866, who received a certificate of sale, and paid the sum of of $19.44 thereon, and who, on August 18, 1868, for a valuable consideration, sold, assigned, and delivered said certificate to Jacob Shoff. Shoff produced the certificate to the treasurer of the county, and received a tax-deed for said lot, legally attested and acknowledged, and duly filed for record at 5 o'clock P. M., August 20, 1868, and recorded at the clerk's office of said county, in Book P of Deeds, on pp. 495, 496. The defendant also alleged that on October 14, 1889, Shoff sold and assigned his title and interest to and in said lot to S. H. Morrison, by a good and sufficient deed therefor; that afterwards, on May 10, 1870, Morrison, for a valuable consideration, sold and assigned his title and interest in said lot to defendant by a good and sufficient deed therefor. The defendant further alleged that he paid the delinquent taxes on said lot, due for state, city, and county purposes, for the years 1865, 1866, 1867, 1868, 1869, 1870, 1871, 1872, and 1873, as follows:
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¦January 6, 1869, sidewalk tax ¦$ 31 50¦
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¦December, 1867, for 1861, 1862, 1864, 1865, and 1866 ¦24 30 ¦
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¦August 10, 1868, for 1867 ¦12 60 ¦
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¦December 1, 1868, for 1868 ¦13 75 ¦
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¦May 31, 1870, for 1869 ¦31 20 ¦
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¦April 14, 1871, for 1870 ¦50 00 ¦
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¦February 27, 1872, for sidewalk tax ¦14 50 ¦
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¦March 28, 1872, for 1871 ¦30 00 ¦
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¦August 4, 1873, for 1872 ¦45 00 ¦
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¦August 7, 1874, for 1873, on the undivided half of said lot¦20 70 ¦
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¦Total amount of city taxes paid by defendant on said lot ¦$273 55¦
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And county and state taxes as follows:
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¦November 14, 1867, for the year 1866 ¦$ 8 58 ¦
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¦November 14, 1868, for the year 1868 ¦9 67 ¦
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¦December 1, 1868, for the year 1868 ¦14 40 ¦
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¦May 20, 1870, for the year 1869, on the undivided half ¦10 80 ¦
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¦April 14, 1871, for the year 1869, on the undivided half ¦11 95 ¦
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¦April 14, 1871, for the year 1870 ¦16 58 ¦
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¦March 29, 1872, for the year 1871 ¦15 76 ¦
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¦August 4, 1873, for the year 1872 ¦34 82 ¦
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¦August 7, 1874, for the year 1873, on the undivided half ¦22 91 ¦
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¦Total of county and state taxes on said lot for which receipt was ¦$145 47¦
¦taken ¦ ¦
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The defendant alleged that said lot was subject to taxation; was legally assessed for taxes, which were not paid by the plaintiff, but became delinquent for the years 1861, 1862, 1864, 1865, and 1866, and were unpaid after delinquency until the date of the sale of the same for taxes, and that the same was legally advertised for sale, on that account, at the time and in the manner required by law, and was offered for sale for the taxes for said years; that due return was made thereof to the city clerk of Nebraska City by the treasurer of said city of said lot sold by him at public sale within the time required by law; that the said lot was sold at private sale at the city treasurer's office for said taxes, to Jacob Shoff, December 13, 1867, who received a certificate therefor, and paid the sum of $24.30 thereon for the years 1861, 1862, 1864, 1865, 1866; that on July 20, 1870, the defendant, as assignee of Shoff, surrendered to the city treasurer said certificate, and received a tax-deed in due form of law therefor, which deed was duly attested and acknowledged, and on the 11th day of August, 1870, was filed for record at 5 o'clock P. M., and was duly recorded in the county clerk's office in Book V of Deeds, pp. 128, 129. The defendant alleged that on July 10, 1870, Jacob Shoff, for a valuable consideration, sold and assigned all his right, title, and interest in said lot to defendant, and made a good and sufficient deed therefor, and avers that he is now the legal owner of the title and interest conveyed in the tax-deed aforesaid. The defendant further alleged, as an additional cause of defense, that more than three years had elapsed from the recording of the tax-deeds for said lot made to him, by reason of which he had acquired a complete and perfect title under said deeds, and was entitled to a decree and judgment of the court for the possession thereof, and in the alternative that if he is found not to be the owner by a good and perfect title to said lot, and entitled to the possession thereof, then he is yet entitled to a perpetual lien upon the same, for the taxes aforesaid, for each of said years,...
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Lincoln Street Railway Company v. City of Lincoln
... ... action for its enforcement was barred under the general ... statute of limitations. The subject has received a ... construction in Wygant v. Dahl , 26 Neb. 562, 42 N.W ... 735, wherein it is said: "Whatever may be the remedy for ... the collection of delinquent taxes, * * * the tax ... ...
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Lincoln St. Ry. Co. v. City of Lincoln
...action for its enforcement was barred under the general statute of limitations. The subject has received a construction in Wygant v. Dahl, 26 Neb. 572, 42 N. W. 735, wherein it is said: “Whatever may be the remedy for the collection of delinquent taxes, * * * the lien thereon has been const......
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