95 Neb. 9 | Neb. | 1914
This is an action to redeem the northwest quarter of section 19, township 26, range 49, in Box Butte county, from a sale for the taxes of 1902 and subsequent years. The property is alleged to have been sold at administrative sale by the county treasurer on the 14th day of November, 1908. The petition to redeem was filed on the 2d day of November, 1910, and summons issued on that day and subsequently duly served. It is alleged,
The decree was filed in the office of the clerk of the district court on the 25th day of July, 1911. On the 20th day of the same month plaintiff lodged with the clerk and asked leave to file a supplemental petition, alleging that since the commencement of the action, to wit, on the ll'th day of July, 1911, plaintiff paid the taxes levied upon the land in controversy in the year 1910, amounting to the sum of $5.70, leaving no taxes due and unpaid upon the premises. Leave to file this supplemental petition was denied, and upon the ruling thereon error is assigned. It appears from the record that the cause
Sections 194-196, art. I, ch. 77, C'omp. St. 1911, provide for the publication of the delinquent tax list. Section 197 requires proof of the publication to be made by affidavit to be furnished the treasurer. What purports to be an affidavit of publication is attached to the newspaper containing the printed list, but is sworn to before a United States commissioner. In Lanning v. Haases, 89 Neb. 19, it was held that such officer had no authority to administer oaths in matters of this kind, and that “an affidavit subscribed and sworn to before a person not authorized by law to administer oaths is void and no affidavit.” Such must be the holding in this case, and that there was no legal proof of the publication of the delinquent tax list.
Objection is made that the defects complained of are not alleged and pointed out in the petition. Wrhile this is in some instances true, the evidence of the facts upon which this decision is based was offered and received without objection, and we are compelled to decide the cause on the theory of the trial. It follows that plaintiff is entitled to redeem.
The decree of the district court is reversed, the cause is remanded thereto, with directions to permit the filing of the supplemental petition, hear the evidence upon the question of the alleged payment, and, should the same be sustained, enter a decree canceling the treasurer’s deed to the Maverick Loan & Trust Company, the deed of the latter to the Sheridan Realty Company, permit plaintiff to redeem and quieting his title upon the payment into court of the. amount of the bid, taxes, interest and costs paid by defendants, within a reasonable time to be fixed by the court.
Reversed.