10 Neb. 199 | Neb. | 1880
This action was commenced in the district court of Cass county to remove a cloud from the title of certaixx real estate of the plaintiff, caused by a tax deed to the defendaxxt for the same. There is no offer on the part of the plaintiff to pay the taxes justly due on such property, the claim for relief being “ that said real estate was never assessed for the year 1870; that the assessor of said Plattsmouth precinct (being the precinct in which said lot 5 in block 35 was situated and liable for revenue purposes) never took and subscribed to the oath, as required by l$w for an assessor to take and sxxbscribe, when he returned his assessment roll to the county clex’k of Cass county; and that said pretended assessox-s’ returns containing the lands and real estate of this-plaintiff, to-wit: said lot 5, is absolutely void. Axxd plaintiff further avers that there never was a valid or legal assessment for said year 1870 in Plattsmouth precinct, as required bylaw; that a large majox’ity of the property holders,' axxd those who held by far the most valixable property in said city axxd precinct, were not required to make oath to the list of their property ixi said precinct; but that said propex'ty holders were allowed to make out a list of their property without making oath to the same.”
The principal question to be determined in this case has already been decided at this term of the court in the ease of Wood v. Helmer, ante p. 65. In that case, where the petition stated substantially the same facts as in the ease at bar, but there was no offer to pay the amount of taxes justly due, it was held that there was no equity in the petition, and the case was dismissed.
In an action at law for the possession of the premises under a tax deed, these allegations, if true, would be available, because in such a case the party claiming under the tax deed must stand or fall upon his title. And as the title to real estate on a sale for taxes can be divested only when there has been a substantial compliance with the requirements of the statute, a failure to comply with the law in any material respect will be fatal to the tax deed.
A party claiming title under a tax deed must rely
The judgment of the district court is reversed, and the cause remanded for further proceedings, with instructions to permit the plaintiff to amend his petition, if he so elect, within thirty days upon payment of all costs to that date, and paying or offering to pay all taxes and interest justly chargeable against said real estate. And if he fails to comply with these conditions the action is dismissed at his costs.
Reversed and remanded.