Action in the district court for Lincoln county to redeem the northeast quarter of section 29, towns!)ip 13, range 32, situated in that county, from the lien for taxes, and to quiet the title thereto in the plaintiffs. A trial resulted in a decree for the plaintiffs, and the defendant has appealed.
It appears that Ella L. Davies and Elliot L. Davies are the heirs of Thomas J. Davies, deceased, and, together with W. H. Warner, are executors of his estate; that as such executors they commenced this action against the American Investment & Trust Company and others, alleging in their petition that Thomas J. Davies, at the time of his death, was the owner of the land in question; that in the year 1901 Lincoln'county commenced an action of foreclosure to subject the land to the lien for delinquent taxes for the years 1895 to 1900, inclusive. Service was
The record contains many assignments of error, but one of which is necessary for a determination of this appeal. Service of summons in the foreclosure tax suit was by publication only, and it appears from the proof of publication that the published notice, a copy of which is in the record, was published in a semi-weekly newspaper, published and in circulation in Lincoln county. The affidavit recites: “That the notice, a copy of which is hereto attached, was published in said newspaper for four consecutive weeks, the first publication having been made on the 14th day of February, 1902, and the last on the 7th day of March, 1902; that said notice was published in the regular and entire issue of every number of said newspaper during the period and time of publication.” There was no appearance by any one in the tax foreclosure suit, and in this action the trial court found that the court had no jurisdiction to render the tax foreclosure decree. It is alleged that the distinct court erred in this finding.
The question of the sufficiency of a like notice which was published in the same paper and for the same length of time was before this court in Claypool v. Robb, 90 Neb.
The question was before us again in Smith v. Potter, 90 Neb. 298, where the lidding in Claypool v. Robb was affirmed. Smith v. Potter was again before the court, and the opinion is found in 92 Neb. 39, where the former decision was adhered to, but it was held that the testimony showed that the notice in that case was sufficient.
It is contended by the appellant that the statements contained in the affidavit, quoted herein, that the notice had been published four consecutive weeks was conclusive. But in the light of the subsequent particular facts set forth, giving the dates and the times of publication, we think this contention is unsound. The statements contained in the affidavit should be considered together, and it follows that, where the particular facts are stated, such statement governs the general conclusion that the notice was published for four consecutive weeks. It 'sufficiently appears that the notice was only published seven times, whereas it should have been published eight times in order to complete the service.
It follows that the trial court' was right in its finding that the court was without jurisdiction to render the tax foreclosure decree. This holding renders it unnecessary for us to determine the other assignments found in the record. It is proper, however, to say that the sheriff’s deed was issued on the 21st day of July, 1902, and the county sold the land to Edward R. Goodman in November, 1906, who recorded his deed, and in October, 1907, Goodman sold the land to the defendant investment comp'any. The decree is silent as to possession, and the land was unimproved. It is apparent, therefore, that the ten-year limitation had not expired when this action was commenced. The court required the plaintiffs to pay all of the taxes, interest, penalties and costs as a condition of redemption.
Affirmed.