88 Neb. 418 | Neb. | 1911
This is an action to quiet the title to lands described in the pleadings. The decree of the district court went in favor of the plaintiff. The defendants appeal, and file separate briefs.
The defendants filed a motion to strike out certain designated portions of plaintiffs petition, and at the same time and in connection with the motion each one filed a general demurrer and answer. It is claimed in the briefs that the motion to strike and the demurrers were overruled over defendants’ exceptions. The record before us fails to show any action by the court upon said motion and demurrers, and the cause proceeded to trial upon the issues as formed in the pleadings. No error can be predicated upon this part of the case. If defendants desired rulings upon that motion and demurrers, they should have requested action of the court, and that should have been done before filing the subsequent pleading. The filing of the ansAvers without a ruling waived both. The action, as against Musser, was to cancel a treasurer’s tax deed which is alleged to be void for want of compliance with the law. Tender and offer to redeem is alleged. As against Peters, the allegation is that he is in possession of the property without right, but by what authority he claims to own the land is not shown by the county records, and plaintiff does not know. By his answer Musser pleads adverse possession for Peters, and asserts title in favor of himself under his tax deed, and denies tender and offer to redeem by plaintiff. Peters asserts title by adverse possession and limitation. As to Peters’ defense the evidence fails to establish his claim. Aside from the evidence submitted that he sought to and did become the tenant of the holder of the legal title during the statutory period, there is no such evidence of exclusive adverse possession as the law requires by which a title can accrue or possession can be protected. The evidence clearly establishes the fact that during the whole time of his alleged
Plaintiff’s title rests upon a proceeding by the county of Sheridan to foreclose a tax lien upon the land. That suit was commenced in 1899. The decree of foreclosure was entered October 9 of that year. On the 9th of November following an order of sale was issued. At the sale Peters was the purchaser. The return was made, the sale confirmed, over the objections of Banning, one of the parties to the suit, and deed ordered. Before the execution of any deed by the sheriff all parties to the action, including Peters, appeared in open court, and it was stipulated and agreed “by all of said parties that said sheriff’s deed should convey said tract of land to said Equitable Land Company instead of to the said purchaser H. A. Peters.” It was further stipulated that the defendants,
The notice of expiration of time within which to redeem from tax sale, given by Musser to Carnahan, receiver of the McKinley-Lanning Loan & Trust Company, the then .owner, and to Peters, is attacked by plaintiff as not having complied with the requirements of section 214, art. I, ch. 77, Comp. St. 1909, in that it was served by the sheriff, without affidavit of service, and that it did not notify the parties that after the expiration of three months from the date of service “the deed would be applied for.” In this counsel have overlooked the fact that the notice and service and return thereof comply with the requirements of the law in force at the date of service. Comp. St. 1903, ch. 77, art. I, sec. 214. This section was amended by chapter 115, laws 1905, to read as the provision now is, but the amended law cannot be applied to this case.
Carnahan, the receiver of the McKinley-Lanning Loan & Trust Company, was a nonresident of Sheridan county at the time of the giving of the notice of expiration of time for redemption, and under the provisions of section 215,
It follows that the decree of the district court should be affirmed, which is done.
Affirmed.