50 Neb. 146 | Neb. | 1897
On July 10, 1893, the plaintiff commenced this action in tlm county court of Gosper county to recover the sum of |29.91 and interest as prayed for in his bill of particulars. The cause of action was based upon a breach of covenant against incumbrances contained in a deed of a cert - in described tract of land, executed and delivered
“The taxes assessed and levied against said land for the year 1886, amounting to the sum of $20, had not been paid, and at the time of said conveyance were a lien and incumbrance on said tract of land, and after the same became due, to-wit, about the 1st day of May, 1887, the plaintiff requested the defendant to pay the same and comply with the terms of covenants and warranty in said deed first mentioned; thereupon the defendant then requested the plaintiff to pay said taxes to the treasurer of Gosper county, Nebraska, and promised to repay the amount so to be advanced by this plaintiff necessary to pay said taxes and remove said incumbrance.
“4. In compliance with the said request of the defendant, and relying on the said promises of the said defendant, and for the purpose of preventing the said land from being conveyed by tax deed, this plaintiff, on the 27th day of June, 1890, paid to the treasurer of Gosper county, Nebraska, the delinquent taxes on the above described tract for the year 1886, which, with accrued interest, at that time amounted to the sum of $29.91, said amount then being the amount necessary to pay in order to dis*148 charge said tract of land from the incumbrance thereon by reason of said taxes.
“5. No part of the said sum of money has been repaid by the defendant, and there is now due from the defendant to the plaintiff, for said taxes so paid, the sum of $29.91, with interest from the 27th day of June, 1890.”
For the defendant there was presented the following motion: “Comes now the defendant in the above entitled cause, and moves the court for a rule on the plaintiff that he be made to strike out from his petition in this court, filed December 8, 1893, all that portion of allegation number three (3) commencing ‘The plaintiff requested the defendant to pay the same and comply with the terms of covenants and warranty in said deed first mentioned; thereupon the defendant then requested the plaintiff to pay said taxes to the treasurer of Gosper county, Nebraska, and promised to repay the amount so to be advanced by this plaintiff necessary to pay said taxes and remove said incumbrance;’ also to strike out therefrom all of allegation No. 4, reading as follows: ‘In compliance with said request of the defendant, and relying on the said promises of said defendant;’ and also that part of allegation No. 5, as follows, reading ‘No part of the said sum of money has been repaid by the defendant,’ for the reason that the issues in the court below, where this cause was tried, and from which it was appealed, did not include the matter set up> in said petition, nor was the trial upon the said matter so set out, and the issues involved in said petition would not.be the issues in the lower court, and the retaining of said matter would cause the raising of an entirely new issue in the case.” This motion was sustained, and there was then filed a demurrer to the petition, which was also sustained, and the plaintiff having signified his intention to plead no further, his action was dismissed.
It is urged in this court, in error proceedings, that the district court erred in sustaining the motion for such action and striking out the portions of the petition. If
Affirmed.