60 Neb. 249 | Neb. | 1900
An action was begun in the district court of Douglas county by plaintiff, appellee, for the foreclosure of a tax lien upon certain property in the city of Omaha, described in the petition, for state, county and city taxes, including special assessments against the property, on account of the opening, extending and grading of a certain street in said city. Several defenses were interposed at the trial by appellants, all of which were directed to the alleged invalidity of the tax sale and the special assess-
It is first urged that the sale for taxes, being at private sale, was without authority and invalid, for the reason, as alleged, that the law had not been complied with, in that no report had been made to or filed with the county clerk, of lands sold at public auction, as required by section 112, article 1, chapter 77, of the revenue laws of the state. The section referred to requires that “the treasurer shall keep a sale book, showing the lands sold, the name of the purchaser, and the sums for which each tract was sold, and on or before the first Monday of December following the sale of real property he shall file in the office of the county clerk of his county a return thereof, as the same shall appear on the said sale book, and such certificate shall be evidence of the regularity of the proceedings.” Before lands and lots can be legally sold at private sale, under the provisions of the section quoted, the treasurer must file with the county clerk a return, showing the lands and lots sold at public auction, to whom sold, and for what sum; and any attempt to sell real property for taxes at private sale without compliance with the provisions of said section invalidates the sale so attempted to be made. The force and effect of the provisions quoted is no longer an open question in this state. The construction given was put upon it as early as 1880, when, in the case of State v. Helmer, 10 Nebr., 25, it was determined “that the county treasurer had no right or power to sell real estate for taxes at private sale until after his report of sales of real estate at public sale is made and filed in .the office of the county clerk.” The ruling just mentioned has been adhered to and reaffirmed in Adams v. Osgood, 42 Nebr., 451, and Johnson v. Finley, 54 Nebr., 733.
In Stegeman v. Faulkner, 42 Nebr., 53, 54, it is held that “a purchaser at an invalid tax sale is not entitled to have taxed in his favor an attorney’s fee as part of the costs of the foreclosure of the lien to which he has by payment become subrogated.” In the opinion by Ryan, C., page , 56, it is said: “As the rights of the appellant to foreclose are measured by the rights of the county in the same respect, it logically follows that the provision as to attorney’s fees can not be held to apply to such a foreclosure as the plaintiff was entitled to in this action.”
In Dillon v. Merriam, 22 Nebr., 151, it is held that “where for want of authority of the treasurer to sell land for taxes, no title passes to the purchaser; he is merely subrogated to the rights of the county, and to the same
Section 105, article 1, chapter 77, of the revenue law provides that all unpaid taxes upon real property after delinquency occurs shall draw thereafter ten per cent interest. Section 86, chapter 12a, Compiled Statutes, 1893, being the then charter act for metropolitan cities, provides that delinquent city taxes shall draw interest at one per cent a month. The plaintiff, therefore, is entitled to recover for state and county taxes paid principal with interest at the rate of ten per cent per annum; and for city taxes paid, the principal with interest at the rate of one per cent per month, or twelve per cent per annum.
The legality of the special assessments against the property in question, which were paid by plaintiff and for which he claims a lien upon the land, is also challenged. It is urged, in substance, that because the land was unplatted and the special assessments apparently large, the same effectuated a confiscation of the property, and, therefore, the taxes are illegal and unenforcible. It appears that, while the tract of land has never been platted into lots and blocks, it lies well within the city limits, and is evidently subject to special assessments for benefits, under the doctrine of assessments for local improvements in municipalities, such as is the city of Omaha. We are not apprised of the value of the land. The assessments appear to have been made with sole reference to the special benefits accruing to the land, and, in so far as fixing the amount thereof, the land was assessed in accordance with law, and in the same manner as were special assessments made on other property benefited by the local improvements, for the expense of which the assessments were made. While the assessments, $152.23 for opening and extending the street, and $743.70 for grading, may appear quite high, without knowledge as to the value of the property or the benefits derived from the improvements made, it can not be said either that the
It is also argued that the notices of the sitting of the
It is contended that the tax sale is invalid because the advertisement of the delinquent tax list was not first published till October 10, 1891. The law requires that the notice shall be published, commencing the first week in October preceding the sale to be made, on the first Monday of November following. Compiled Statutes, 1899, chapter 77, article 1, section 109. It is contended that the first publication affecting the case at bar was
Finally, it is urged that the special assessments are invalid because it does not appear that the board of equalization was in session and remained so during its deliberations as required by law; and especially so because it is not shown that a sitting of such board was' held on the day mentioned in the published notice for the meeting, from 9 A. M. until 5 P. M. of said day. It is provided by law that before any special taxes may be levied, the city council shall sit as a board of equalization for not less than one day, from 9 A. M. till 5 P. M., for the purpose of equalizing the proposed levy, correcting errors, and hearing all complaints which may be made by the owners of property, which it is proposed to assess. Compiled Statutes, 1893, ch. 12a, sec. 85. The record' in
It is urged in the case at bar that because the record is silent as to the time the board took a recess subject to the call of the chairman, it is presumed that they were in session at the first meeting during all the hours they were required to sit by the published notice as well as by the section of the statute governing the subject. The fair
For the reasons given, the judgment of the lower court is reversed, and the case remanded for further proceedings in conformity with the views herein expressed.
Reversed and remanded.