Board of County Commissioners v. Miles

7 Neb. 118 | Neb. | 1878

Maxwell, J.

The plaintiff brought an action against the defendant in the district court of Richardson county, under the provisions of section 58 of the revenue law, to recover of the defendant the amount bid by him for certain lands, at the sale thereof for delinquent taxes in that county, in September, 1871.

The plaintiff claims judgment for the sum of $25,-352.05.

The defendant answered the petition of the plaintiff, and alleges:

First. That the petition does not state facts sufficient to constitute a cause of action.

Second. The defendant denies all the facts stated in the petition.

Third. The defendant alleges that certain lands described in the petition, which the plaintiff claims were bid in by the defendant were owned by parties residing in the county, who had sufficient personal property therein, out of which the tax could have been collected, but that the treasurer refused to collect any of said taxes on said real estate, out of said personal property.

The plaintiff filed a motion to require the defendant to make the third count of his answer more definite, by stating which particular parcels of land were owned by parties who had sufficient amount of personal property in the county to pay the tax due thereon. The motion was overruled by the court, to which the plantiff excepted.

In overruling this motion the court erred. Prior to the act of February 18, 1875 (Laws, 1875, p. 96), it was the policy of the law to resort to the land itself only where all other remedies had failed to enforce a satisfaction of the tax. Johnson v. Hahn, 4 Neb., 144. And a sale of land for taxes, where it is shown that the owner had sufficient personal property in the county, out of which such taxes could have been made, would be without authority of law, and would be a good defense to the action. But it is the duty of the defendant to specifically point out the tracts of land which he claims were illegally sold.

On the trial of the cause the jury found a verdict for the defendant. The court having overruled a motion for a new trial, rendered judgment thereon. To reverse which the plaintiff brings the cause into this court by petition in error.

It is claimed on the part of the defendant, that at the time of the sale of the land referred to he made an agreement with the treasurer of Richardson county, whereby he (the defendant) was to bid for such tracts as he saw fit, and that he might select therefrom certain lands on which he had mortgages, and certain other tracts of land owned by non-residents, and that the other tracts bid off by him were to be taken back by the treasurer and the sale cancelled. This is denied.

Section 56 of the revenue law provides that: “ On the first Monday of September of each year, between the hours of nine a.m. and four p.m., the treasurer is directed to offer at public sale * * * all lands on which the taxes for the previous year remain unpaid,” etc

Section 57 provides that the person who offers to pay the amount due on the smallest governmental subdivision of land for the smallest portion of the same, is to be considered the highest bidder, etc.

The statute is notice to the purchaser of the conditions of the sale. The treasurer has no authority to impose conditions, or enter into stipulations not authorized by law.

The highest bidder at a tax sale may enforce his bid by compelling the treasurer to issue a certificate of sale for the lands purchased. And the treasurer, in the name of the county, under the provisions of section 58 of the revenue law, may maintain an action against a bidder to recover the amount of his bid. A bidder cannot be permitted to purchase lands at tax sales for delinquent taxes, and afterwards treat the sale as void, and refuse to pay the purchase money. The object of the law is to raise revenue, and at the same time protect, as far as possible, the rights of the owner of the land by inviting competition at the sale. But to permit bidders at such sales to repudiate their contracts would entirely defeat the object of the law.

It is urged that the treasurer did not, on or before the first Monday in October succeeding the sale, file in the office of the county clerk of his county a return of the sale of lands, showing the lands sold, the names of the purchasers, and the sums paid iy them, and also a copy of the notice of sale, with a certificate of the advertisement, verified by an affidavit, such certificate being evidence of the regularity of the proceedings. It is evident that this return is not to be filed until the sums bid are collected. It only applies to actual sales, and where the money is paid. In a case like the one at bar, the return containing the description of the lands in controversy should not be filed until the amount of the tax is collected.

The instructions of the court to the jury, being in conflict with these views, were erroneous.

The judgment of the district court is reversed, and the-cause remanded for a new trial.

Reversed and remanded.