51 Neb. 465 | Neb. | 1897
In this, an action instituted in the district court of Douglas county, the plaintiff sought to have quieted the title to lots 5 and 6, in block 1, of Hillside Addition No. 2 of the city of Omaha, which he had acquired by tax deed issued to him by the county treasurer of Douglas county. It was alleged that plaintiff had purchased the property at private sale, made for the delinquent taxes for the year 1889, and after the usual proceedings in such cases, the property not having been redeemed, a deed was issued by the county treasurer by which it was conveyed to the plaintiff. It was also pleaded that the defendant had or claimed some interest in or to the property. The defendant (hereinafter designated the appellant) answered denying many of the allegations of appellee’s petition, and stated affirmatively several reasons why the deed by the treasurer to appellee was void and of no effect; also that prior to the time of appellee’s alleged purchase the title to the premises in controversy had been conveyed to appellant by warranty deed executed and delivered by certain named parties, and the ownership' and title had at all times since such conveyance continued in the appellant. In regard to the taxes for the year 1889, and some other years, there were in the answer the following allegations: “In answer to the paragraph numbered 7, this defendant says that he was not aware or had no knowledge or information that the said J. L. Browne had a tax certificate for said lots, and says if the treasurer of Douglas county sold said lots, he did so con
It appears that at the commencement and during the trial, it was asked for the appellee that an amendment to the petition be allowed by which would be made to appear in detail the several sums of taxes which he claimed to have paid on the property at and subsequent to the time of purchase at the sale by the treasurer. This was not done, but the court received evidence of these amounts, and also of an amount expended by appellee in building a fence on the premises, evidently on the theory that if appellant succeeded and obtained the affirmative relief asked for in his answer, the appellee might recover the amounts he had paid and expended for taxes and improvements on the property. A decree was rendered which, although nothing is stated in it on the subject, or to such effect, plainly proceeded on the theory that
“On or about tbe 18th of October, 1889, Thomas K. Sudborougb and bis wife made, executed, and delivered a deed in fee-simple for two certain lots of land, to-wit, lots 5 and 6, in Hillside No. 2, block 1, of tbe city of Omaha, Nebraska, to said John B. Finley, trustee, bis*469 heirs, assigns, and legal representatives, and that said deed was subsequently recorded in the proper office for the recording of deeds of Douglas county, Nebraska; all previous taxes and assessments thereon were represented to have been paid, and that at said time I was not aware that there were any taxes or assessments due and unpaid on said lots for either the year 1889 or any other year. * * * Also, on the 17th of October, 1890, I addressed a letter to the county treasurer of Douglas county, Nebraska, desiring to obtain from him a statement of all the taxes and assessments against the property described in said letter, a copy of which is hereto annexed, marked ‘A;’ that in compliance with said letter the said county treasurer prepared and delivered to me a statement of the aggregate amount of all taxes due and unpaid against the property described in said letter, which amount was paid to him on the same day by my check on the First National Bank of Omaha, Nebraska; that it was my intention to pay all taxes and assessments due against said property, and I fully believed that I had paid all that the treasurer required; that subsequently, on the 27th of June, 1892, while on a visit to Omaha, I discovered that said lots had been sold for the unpaid taxes of 1889, and desiring to have the same redeemed, I called at the office of the county treasurer of Douglas county for that purpose. By mistake a certificate of redemption was made out for a different property from that which was owned by myself, said lot being on Burt street and in the name of J. L. Browne, which led me to the belief, and also the clerk in the treasurer’s office, that this property on Burt street was the same that belonged to me, and had been sold to J. L. Browne for unpaid taxes. Accordingly it was redeemed by me, but has been since found not to be the same property that was owned by me and which I had redeemed. A copy of said certificate of redemption, marked ‘B,’ is hereto annexed. I also present papers marked Exhibits ‘C,’ ‘D,’ ‘E,’ ‘F,’ and ‘G,’ being copies of receipts for taxes and assessments paid by me on said*470 lots to John Rush, city treasurer of Omaha, dated October 14, 15, 1889, and October 28, 1890.”
The letter, to a copy of which reference is made in the foregoing as annexed to the evidence, and marked ‘A’ (the evidence was in form of deposition), contained what it is claimed was intended for a description of the property in controversy, as follows: “Lots 5 and 6 of Hillside No. 1, corner of Burt and Thirtieth streets.” To be correct this should have been Hillside No. 2, and not No. 1. Pursuant to the directions of the letter, the county treasurer prepared and delivered to the appellant a statement of the amounts of taxes due against the property therein described, including lots 5 and 6 of Hillside No. 1. It appears that the lots just named were not at the “corner of Burt and Thirtieth streets,” and it is urged that if the treasurer or his assistant, the party who made the statement, had looked at a plat or map of the city of Omaha and its additions, it would have been discovered that the lots at the corner of Burt and Thirtieth streets were 5 and 6, Hillside No. 2, and the statement would have been, as to the taxes against the property, the amount of which the appellant desired to know and to pay, and the subsequent payment would have been properly applied; that it was the duty of the officer to make such examination, and he was careless in not doing so, and the appellant blameless. With the foregoing view we do not agree. The description of the property as it appears in the letter was the work of the appellant,' and the portion of it which assigned the situation of the property as “Hillside No. 1” was the more specific and particular than that of the “corner of Burt and Thirtieth streets.” The officer must necessarily choose one or the other, and we must conclude that he was not careless, nor was it wholly his mistake that he did not ascertain the correct property. The description furnished by the appellant was well calculated to mislead the officer; hence the appellant cannot be held blameless and must suffer the consequences of his own error. When the appellant, on the 27th of June, 1892,
In relation to the amount which was adjudged due the appellee for improvement, — the fence which he had caused to be built on the lots, — it must be said that it was not pleaded nor demanded, neither was it claimed under the provisions of chapter 63 of the Compiled Statutes,“the Occupying Claimants’ Act.” It had no legitimate standing in the suit, and should not have been allowed and must now be rejected. The true amount for which appellee should have been allowed in the decree was fl30.82, to which sum the amount adjudged his due will- now be changed, and as thus modified the decree will be affirmed.
Judgment accordingly.