88 Neb. 554 | Neb. | 1911
Action in the district court to set aside a deed issued to the defendant Ella Wills in a tax foreclosure proceeding, and to redeem the southeast quarter of section 8, township 9 north, of range 29, in Lincoln county, Nebraska, from a lien for taxes assessed thereon. The defendants had the judgment, and the plaintiff has appealed.
It appears that the plaintiff, Herbert F. Bundy, obtained title to the land in question on June 13, 1893, by a patent from the United States; that thereafter he leased the land to the defendant Samuel O. Wills, who became his tenant in possession; that on the 10th day of December, 1900, the county of Lincoln, without an administrative sale, commenced a foreclosure of a tax lien upon this land, and made Herbert F. Bundy and others defendants therein. Personal service of summons was had upon the defendant, Samuel O. Wills, .who, as above stated, was in possession, and service by publication was made upon Herbert F. Bundy, the owner, who at that time was a resident of this state. The other defendants were also served by publication. A decree of foreclosure was entered in that case, and such further proceedings were had that the land was sold thereunder on March 1, 1902, to the defendant Ella Wills, who is the wife of the defendant Samuel C. Wills, for $150. This sum was applied to the payment of the taxes and the costs. It further appears that the sale was confirmed on the 3d day of March, 1902, and a'sheriff’s deed was issued to the purchaser, which was duly recorded.
Plaintiff’s first contention is that his attempt to redeem by sending the check above mentioned to the defendants was made in time and while that right existed, and that he could thereafter maintain his action for that purpose, if commenced any time within four years from that date.
Defendants now contend that plaintiff’s attempt to redeem was ineffectual, because the check sent to them was not a legal tender. Under ordinary circumstances this contention should prevail. But where, as in. this case, there was no objection that the tender was made by check instead of cash, such tender should be held to be sufficient. The objection that payment by check is not a legal tender is waived, if not made at the time the check is-offered. In Graham v. Frazier, 49 Neb. 90, it was said: “A formal tender of money is never required where it is disclosed, if it had been made, it would have been fruitless.” In Filley v. Walker, 28 Neb. 506, there was a tender of payment by check for the price of 117 head of cattle purchased, but undelivered to the plaintiff.- The defendant replied that plaintiff need not draw the check, that he would not receive it unless there was included therein the amount of certain losses claimed on eight car-loads of cattle. It was said: “This is believed to have been a sufficient tender of the price, or, in other words, superseded a technical tender of either legal or current money for the 117 cattle.”
It is further contended that the tender was insufficient in amount. It appears that the plaintiff and defendants were mutually of the opinion at the time the check was sent to the defendant, Ella Wills, that the rate of interest which a purchaser at tax foreclosure sale was entitled to receive was 10 per cent. The amount of the check was based on that understanding and embraced interest at that rate. It was subsequently determined by this court that the purchaser at a tax foreclosure sale, is entitled to the
It is also contended that at the time the plaintiff attempted to redeem he was not the owner of the land in question, and had no such interest therein as would give him that right. The plaintiff’s evidence was sufficient to show that he had such an interest in the land at all times as would entitle him to redeem the same from tax sale. The defendants introduced no testimony upon that point, and therefore this objection was without merit.
Finally, the plaintiff has attacked the validity of the foreclosure decree and the proceedings had thereunder resulting in the sale of his land to the defendant, Ella
It follows that the judgment of the district court should be, and it is, reversed, and the cause is remanded to that court, with instructions to take an accounting of the amount due to the defendants on account of the tax sale in question, including subsequent taxes, interest and costs, together with their permanent improvements, if any, to ascertain the value of rents and profits from and after the issuance of the sheriff’s deed to the defendant, Ella Wills, and offset the same against the amount found due to the defendants, and thereupon to render a decree permitting the plaintiff to redeem; and, upon the payment of the amount so found due to the clerk of the district court for the use of the defendants, the decree for redemption be made absolute.
Judgment accordingly.