80 Neb. 274 | Neb. | 1907
In 1892 the defendants became owners of 21 acres of land situated in the southeast quarter of the northwest quarter of section 29, town 2, range 7, in Gage county. In the deed by which the defendants took title, the land was described by metes and hounds as follows: “Commencing at the southeast corner of the southeast quarter of the northwest quarter of section 29, in township 2 north, of range 7 east of the 6th P. M., thence west along the south line of said tract of land 598 feet, thence north 45° west 287 feet, thence north 941 feet to the center of Indian creek, thence down the center of the channel of Indian creek in a northeasterly direction to a point where the north line of the southeast quarter of the northwest-' quarter of said section 29 crosses said Indian creek, thence east along said north line 175 feet, more or boss, to the northeast -corner of the above described forty-acre tract of land, thence south along the east line of said land 1,320 feet to the place of beginning, containing 21 acres, more or less.” The description of this land on the tax list for the years 1896 and 1897 Avas: “Com. 32 rds. e. of N W cor S E‘N W4, th E to pt on a line with the center of Norwich St. th S 11 1-5 Eds. to Indian creek, th N E along creek to N line S E4 N W4, th E to N E cor. S E4 N W4 th S 80 Eds., th W 36 Eds., th N 45° W4 22.100 Ohs., th N 68 Eels, to the place of beginning in S E4 N W4 29-2-7.”
The accompanying diagram illustrates the two descriptions, the first being indicated on the interior, and the second on the exterior lines of the tract.
It Avill be observed that in the tax list description the distance from the northwest corner of the southeast quarter of the northwest quarter to the center of NorAvich street is not given; but it appears from a plat.introduced
2. We do not think the mistake of the treasurer in writ
3. The important question in the case1 arises from the use of the word east in the next call after the run of 80 rods, or 1,320 feet south. If this course is literally followed, it is altogether upon another governmental subdivision than that named; and, after following the next call west 45° north 4.22 chains, we are still outside of the limits of said southeast quarter of said northwest quarter. The next call is 68 rods north to the place of beginning. The defendants claim that this line must be run due north ihe distance indicated, and, as this would not close the survey, that there is no land at-all embraced in the descripI ion. On the other hand, the plaintiff insists that, where the last call of a survey requires a return to the place of beginning, such survey must be closed, though both the course and distance given be disregarded in so doing; and that, applying the rule to this case, the last line should run to the place of beginning, though the course must be northwest, instead of north, and though the distance is greater than indicated by the survey. If we should accept this solution, we would have bounded a triangular tract in the southwest quarter of the northeast quarter, and a tract comprising perhaps a third of defendants’ land. If this
4. We do not think’that either of the interpretations suggested furnishes the correct solution of the question involved. “In.listing land it must be described with particularity sufficient to afford the owner the means of identification, and not to mislead him. Cooley, Taxation (3d ed.), 740. And the rule would seem to be that “the designation of the land will he sufficient if it afford the means of identification, and do not positively mislead-the owner or be calculated to mislead him.” Ib. 745. The reason of the rule is that “such a mistake or falsity defeats one of the obvious and just purposes of the statute—that of giving to the owner an opportunity of preventing the sale by paying the tax.” Ib. 747. These -rules are laid down for the construction of tax deeds, which, taking effect only as the execution of a statutory power, should be construed with strictness; and it might well be argued that in an action to foreclose a lien there should be an interpretation more favorable to the validity of the taxes; hut that question we do not deem it necessary to decide. In this case the defendants’ land had been borne on the tax list for the years 1896 and 1897 in the name of Pasco & Murdock as a 21-acre tract in the southeast quarter o£ the northwest quarter of section 29. In 1898, 1899 and 1900 the description was precisely the same, except the use of the ■word east for the word west in one of the calls. The evidence shows that no other 21-acre tract was assessed to these parties, nor in the said southeast quarter of the northwest quarter of said section 29; and it appears that, if the defendants’ land was not covered by the description in question, it escaped taxation for these years. Is it reasonable to say that the error in the description was such as to have misled the defendant had he presented him
By the Court: For the reasons stated in the foregoing opinion, so much of the decree of the district court as found the plaintiif entitled to recover for the taxes of 1901, 1902 and 1903 is affirmed, the remainder reversed, and the cause remanded for further proceedings in accordance with the above opinion.
Judgment accordingly.