291 N.W. 721 | Neb. | 1940
This is an equitable action brought by Frank Harris and Edward Harris, plaintiffs, to quiet title in them to three lots in the suburbs of Omaha. The defendant filed a cross-action, in which he sought to have the title quieted in himself as against plaintiffs. The trial court entered a decree quieting title in the plaintiffs, and defendant appeals.
The three lots are not alone inclosed by fences, but there are fences around a large field, with the nearest fence along the bank of the river, about a block and a half from these lots. No buildings of any kind have ever been erected on these three lots, so no one has ever resided on them. The plaintiffs live in a house located about one-half mile to the east of the lots in question, and prior to this suit there was nothing appearing in the record title of these lots showing any claim of title by the plaintiffs, as their sole claim of title is based upon adverse possession since 1922.
On May 13, 1929, the county of Douglas began a tax foreclosure suit under the provisions of section 77-2039 et seq., Comp. St. 1929, for the foreclosure of the statutory lien for delinquent taxes for the years 1910 and prior thereto, and for all subsequent years up'to and including 1927. It is understood, of course, that Douglas county included a large number of other tracts of land in addition to these three lots. In this tax lien foreclosure suit, the last record owners of these lots were made defendants. One of them, Emma C. Peterson, the last record owner of lots 21 and 22, was served personally with summons in Douglas county. Lewis J. Spitzbart, the last record owner of lot 20, was not personally served. The lots, by proper description, were made defendants, and notice was published against all persons
The plaintiffs had been in open and notorious adverse possession of the property since the year 1922, and had continuously farmed these lots with the rest of their property. They had planted sweet potatoes, sweet corn, Irish potatoes, or other crops each year on these lots, with the surrounding ground, beginning with the year 1922, and from the fact that they planted sweet potatoes in 1922 they fixed the date of their possession as beginning on April 7, 1922, and on the day of trial, April 7, 1939, Frank Harris testified that nobody had ever notified them about the lots, or tried to collect rents or anything else, although they had been in possession then for 17 years that day. It further appears that the Harris brothers had been in possession of the property for ten years and two months when the defendant, Heeter, secured his sheriff’s deed on June 13, 1932.
Judge Dineen, of the district court, found generally for the Harris brothers, plaintiffs, for the reason that service in the tax foreclosure action was not had upon the Harris brothers, either by name, or by publication, or personally, and that the proceedings, so far as they were concerned, were null and void, and by reason of the open, notorious and adverse possession of the plaintiffs for more than ten years last past the title was quieted in them, and he canceled the sheriff’s deed of record as against these lots.
“A judgment foreclosing a tax lien against unknown owners of land rendered upon a citation served by publication is not binding upon persons in actual possession of the land at the time of the filing of the suit and the rendition of the judgment, but not served with citation.” Sellers v. Simpson (1909) 115 S. W. 888 (53 Tex. Civ. App. 205). In this case the court entered a judgment affirming the lower court, and awarding title to defendants, who claimed by adverse possession against the plaintiff, who claimed under a sheriff’s deed resulting from the foreclosure of a tax lien by the state. At the time of the filing of said suit, and the rendition of said judgment for taxes, all of the defendants who pleaded the statute of limitations were in actual visual possession of the parts of the land claimed by them in their several answers, and none of them were made parties to the suit.
Where claimants have- continued in adverse possession of Nebraska 'land for over ten years, the fact that during their occupancy there was a sale and conveyance of the premises for taxes, without notice to them, does not constitute an interruption of their possession. See Harrison v. Dolan, (1899) 172 Mass. 395, 52 N. E. 513, in which case Justice Oliver Wendell Holmes, who was then sitting as a judge of the supreme court of Massachusetts, and wrote the opinion, said: “Adverse possession is pure matter of fact, to be interrupted only by interrupting the possessor’s exclusion of adverse claimants, an abandonment of his claim, or a' change in his intent.”
It appears to the court that the situation in the case at
A careful examination of the record discloses no prejudicial error, and the decree of the lower court is hereby
Affirmed.