Board of County Commissioners v. Gray

10 Neb. 565 | Neb. | 1880

Lake, J.

The action below was brought under sec. 71 of the general revenue act [Gen. Statutes, 924], which is as follows: “ "When by mistake or wrongful act of the treasurer or other officer, land has been sold contrary to the provisions of this act, the county is to save the purchaser harmless 'by paying him the amount of principal and interest to which he would have been entitled had the land been rightfully sold; and the treasurer or other officer and their sureties shall be liable for the amount on their bonds to the county, or the purchaser may recover the amount directly from the treasurer or other officer making su'ch mistake or error.” - '

The district court sustaining the view of this section taken by counsel for the defendant in error, held it to be applicable to the slate of facts set forth in the petition, from which it appears that at the time of the alleged sale there was no tax against the land, it having been previously paid by the owner. But we are of the contrary opinion, and accordingly hold that it was not intended to, and does not apply to such a state of facts as we have here, but only where the sale is made iu the enforcement of a tax actually levied, which has become delinquent, and where, in consequence of an omission to observe the requisite statutory steps in making it, the purchaser fails to secure the title.

According to the petition the claim of the purchaser does not rest upon the. fact of the sale having been defeated by reason of some irregularity or omission by some officer of the revenue, of any formality essential to its validity, but substantially on the fact that, for want of jurisdiction in the treasurer over the land, the pretended sale was absolutely void.

As to the jurisdiction of the treasurer in this matter, there can be no doubt, we think, that it ceased immediately upon the payment of the tax, and that thenceforward, in all that he did, he was a mere wrong-doer, to whom the statute was no protection, and for whose acts the county is in no wise answerable under the section above quoted.

Having determined that the purchaser can have no aid from the statute on which he chiefly relies to sustain the judgment of the district court, we must next inquire whether, independently of the statute, the petition states a cause of action against the county. At first, and without much reflection, we were disposed to hold that the county might be held liable for tire money as being received for the plaintiff’s use under the allegation in the petition: “ That at said sale the plaintiff paid said Otoe comffy, by the hands of its treasurer, on account of said purchase, the sum of $34.11.” But a more careful consideration leads us to the conclusion that such a ruling is unwarranted, and that the demurrer to the petition ought to have been sustained.

We are of the opinion that this allegation shows nothing more than that the money in question was paid into the hands of the county treasurer just as money paid at tax sales usually is, to be credited by him to the various funds for which taxes were levied for that year, as is required by sec. 44 of the revenue act, and to be properly accounted for in his settlement with the county commissioners. And, in the absence of any averment on the subject, the only legitimate inference is, that the sum so paid to the treasurer was the aggregate amount of all the various items required to be levied annually for state, county, school, and road purposes, of which probably less than a moiety would in any event belong or go to the county, or be subject to the control of its board of commissioners. Eor instance, the county treasurer is required to pay the portion levied for all state purposes over to the state treasurer, and that levied by direction of the several school districts over to the treasurers thereof respectively.

From this it must be seen that, even conceding the application of this money according to the statutory rule, the county lias taken but a portion thereof, the amount of which is unknown to us, and unascertainable from anything contained in the record. This being so, it would certainly be exceedingly unjust to require the county to make good the whole sum paid to the treasurer, and in the absence of a statute so directing there is no rule by which it can be done.

In addition to what we have already said, there is at least one sufficient reason why, under the facts of this petition, the county should not be held liable for any part of tbe money. In addition to directing tbe treasurer what lie shall do with money received by him on account of taxes, tbe statute provides for stated settlements to be made by bim witb tlie board of commissioners, in which he “ is to be charged witb tbe amount of all tax lists placed in his hands for collection, and credited with the amount collected thereon, and the delinquent lists.” [Gen. Statutes, 925, sec. 77.] The amount of money received by the county and credited to the treasurer on account of the levy against the land in question can therefore he definitely known only by the result of such settlement, but of which the petition does not advise us.

For these reasons the judgment of the district court must be reversed, the demurrer to the petition sustained, and the cause remanded for further proceedings, if desired, not conflicting with this opinion.

Reversed and remanded.