82 Neb. 475 | Neb. | 1908
This action was commenced to foreclose a mortgage for $700 executed and delivered by Aaron N. Clark and wife to the Mead’s State Bank of York, Nebraska, dated November .1, 1899. After the usual allegations by an assignee of a mortgage in a petition to foreclose, the petition further alleges that the mortgagor Clark conveyed the premises described in the mortgage by warranty deed to Sawyer and Walker subject to the mortgage; that Sawyer and "Walker conveyed to A. J. Miller subject to the mortgage; that on the 5th day of November, 1892, Miller conveyed the lands to Eugene H. Hill by warranty deed subject to the mortgage and the taxes; that on January 20, 1894, the said Hill conveyed the premises to the defendant Sexson subject to all liens of record; that said Hill and said Sexson are brothers-in-law; that, with the design of having the lien created by said mortgage discharged and divested without payment of the mortgage, Hill and Sexson confederated, conspired and colluded together, and in pursuance of such conspiracy, and to accomplish said design, said Hill purchased a tax sale certificate on said land for the taxes of 1893, which taxes became due and delinquent while Hill was the owner of the land, and prior to his conveyance to Sexson; that Hill, in pursuance of such conspiracy, foreclosed the tax lien represented by such certificate, and became the purchaser of the land at the foreclosure sale, and two months later executed another deed to defendant Sexson for a consideration of $2; that during all of the time Hill .was proceeding with such foreclosure procéedings defendant Sex-son was the owner and in possession of the land, and that the subsequent conveyance to him was without consideration, and that all of the acts of Hill and Sexson aforesaid
The answer then alleges the sale of the premises by the sheriff of Perkins county, the confirmation of the sale, the execution and delivery to Hill of the sheriff’s deed, and adds a general denial. For reply the plaintiff denies that the pretended summons, or any summons, in said foreclosure suit was ever served upon Mead’s State Bank, and alleges that the said Wycoff was not the receiver of said bank, and was not in possession of the estate or in charge of the business of said bank at the time of the pretended service of said pretended summons, and alleges that at that time the Mead’s State Bank was a corporation duly organized and existing under and by virtue of the laws of the state of Nebraska, and not dissolved; that the pretended service of said pretended summons upon said bank was and is void; denies each and every other allegation of new matter in the answer contained; and alleges that the facts set forth in the answer are not sufficient to constitute a defense to the action. Upon these issues the case proceeded to trip! in the district court for Perkins county. The court entered a decree ordering plaintiff to pay the sum of $113.71 as the amount necessary to redeem from said tax lien, and giving plaintiff a foreclosure of his mortgage. Prom that part of the decree ordering plaintiff to pay the said sum of $113.71, plaintiff appeals; and, from that portion of the decree giving plaintiff a foreclosure of its mortgage, defendant appeals.
Plaintiff having alleged in his petition his willingness to pay the money necessary to redeem from said tax liens, and having therein prayed that he be allowed to make such redemption, his appeal from that portion of the court’s decree is without merit, and must be decided adversely to him.
On the trial of the case, all of the files in the tax foreclosure suit referred to in the pleadings were received in
In addition to what has been said, we think Lincoln Nat. Bank v. Virgin, 36 Neb. 735, settles the question that plaintiff’s rights under his mortgage were not barred by
Having held that the tax foreclosure suit prosecuted by Hill is subject to attack in this suit, what follows? The tax certificate upon which that suit was based was for the taxes unpaid and delinquent during the year 1893, while the duty rested upon Hill to pay the same. The subsequent taxes involved were taxes for the years while the defendant Sexson owned the property under a deed which-conveyed the premises to him subject to the mortgage. Hence, they were taxes which it was his duty to pay. Furthermore, we think the evidence fully sustains the allegations in plaintiff’s petition that this tax foreclosure proceeding was a. device by the brothers-in-law, Hill and Sexson, to defeat plaintiff’s mortgage: It is remarkable indeed that defendant Sexson would enter his voluntary appearance in a bona fide suit by Hill to foreclose a tax lien upon his, Sexson’s, land, and then never
We recommend that the judgment of- the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.