124 Neb. 410 | Neb. | 1933
Plaintiff brought action to foreclose a tax certificate against 80 acres of land in Lancaster county. All parties having an interest in said 80 acres, so far as plaintiff could ascertain, were made defendants. Several answers and cross-petitions were filed, and trial was had upon June 4, 1931, and upon December 3, 1931, a decree was entered in the district court, finding that $766.56, with 12 per cent, interest, was due the plaintiff on his tax certificate, and the same was decreed to be a first lien. The decree also provided for an attorney’s lien of 10 per cent, thereof to Walter L. Anderson. The court allowed
The plaintiff, Thomas W. Moffitt, in the fourth cause of action of his petition, alleges that he purchased a tax certificate upon the east half of the southeast quarter of section 15, township 8, range 8, in Lancaster county, Nebraska, for delinquent taxes for the year 1924, amounting to $57.25, and thereafter paid as subsequent delinquent taxes to said certificate, for 1925, $61.88; for 1926, $58.91; for 1927, $78.03; and upon June 5, 1929, paid the delinquent taxes for 1928, of $143, and upon May 20, 1930, paid the delinquent taxes for 1929, of $148.70. Plaintiff then sets out that Charles Monk and wife were the tenants in actual possession of the property, and that Gertrude D. Reed, Gertrude Reed, assignee, William D. Way, Victor C. Rasmussen, Zella Rasmussen, Vernetta Marie Rasmussen, Emma Lois Rasmussen, Merle Warren Rasmussen, Victor Reid Rasmussen, H. N. Mattley et al. all claim some interest in said real estate.
Plaintiff further alleged that Mary Rasmussen in her lifetime was the owner of the property, and that, as her estate was being probated in Lancaster county, he was unable to ascertain the interests or rights of her respective heirs. That H. N. Mattley and George W. Berge were the attorneys in said estate proceedings, and have a claim for their fees therein; that Zella Rasmussen has now remarried, and her present husband’s name is Wayne Rogers. Plaintiff asks for an accounting, and that his tax lien be declared a first lien against said property, and
Upon February 10, 1931, Gertrude D. Reed filed her answer to plaintiff’s petition, and a cross-petition against all other defendants, and alleged among other things that Mary Rasmussen was during her lifetime the owner in fee simple of the 80 acres of land hereinabove described, and the said Mary Rasmussen died on March 10, 1910, leaving a last will, in which, in the second paragraph thereof, she devised the said 80 acres to her husband, Lars Rasmussen. Other paragraphs of said will are set out as follows:
“Third. After the death of my beloved husband, I desire that the above described farm become the property of my beloved son, Victor C. Rasmussen.
“Fourth. The widow of Victor C. Rasmussen, Zella Rasmussen, is to have the use of the above described farm so long as she shall remain single and his widow.
“Fifth. At the death of the widow, Zella Rasmussen, the heirs shall sell the farm above described and divide the proceeds of the sale equally between them.”
Cross-petitioner states that Lars Rasmussen died December 23, 1916, intestate, and alleges that the county court of Lancaster county determined that Victor C. Rasmussen was the only heir at law of Lars Rasmussen, and inherited said land in fee simple from his father. She further alleges that on May 17, 1923, execution was issued upon two judgments against said Victor C. Rasmussen, and the sheriff of Lancaster county levied on said land, and at the sheriff’s sale thereon the cross-petitioner, Gertrude D. Reed, purchased the same, and sheriff’s deeds were delivered to her and recorded October 10, 1923, and claims that she thereby became, and is now, the fee owner of said land, and took possession thereof on July 14, 1923. Cross-petitioner further sets out that Zella Rasmussen, now Zella Rogers, claims some interest in said land by reason of the said fourth paragraph of
For answer to plaintiff’s petition, she specifically denies that the taxes levied for school purposes for the years 1929, 1930 and 1931 were lawfully levied or assessed against said land. She alleges that Charles Monk, who was the tenant thereon, without her authority or knowledge made application for the transfer of 40 acres of her land from school district 116 to district 8; that said application showed upon its face that none of the several provisions in section 79-2101, Comp. St. 1929, were fulfilled or complied with, and that such application for transfer was void, and that plaintiff has notice of the defects of the levy and assessment of said school taxes. She further alleges that, acting upon said application, said transfer was made of 40 acres of her land, and without authority of law the taxing officers reappraised the
To this answer the transcript shows no reply filed by the plaintiff, although replies are filed by Vemetta Marie Hansen, Emma Lois Ryan, Merle Warren Rasmussen, Victor Reid Rasmussen, Walton B. Roberts, guardian ad litem. That in the answer and cross-petition of .Hansen and Ryan against Reed, she is charged with having sold a portion of said premises to the state of Nebraska for $210 for highway purposes, and that a judgment should be entered against her therefor, and, in addition, for $500 damages for this and other waste committed thereon.
This appeal was prosecuted in this court by Gertrude D. Reed, who was allowed extra time for oral argument, and who has been permitted to file five separate briefs herein. For reasons of her own; she has separately briefed and argued her .contentions against the plaintiff and against the other cross-petitioners. However, the decree of the district court covered all the separate contentions in one journal entry, and this opinion will discuss briefly each of her contentions, as far as the same can be done within the reasonable limits of an opinion.
The case at bar first appeared before this court when some of the cross-appellants failed to file their transcripts within three months. Gertrude D. Reed, a cross-appellant, filed a motion to strike, and, upon argument and submission, this motion was sustained. Moffitt v. Reed, 123 Neb. 420.
1. The first error relied upon for the reversal of this case by Miss Reed is that this court erred in holding in the former case of Reed v. Rasmussen (No. 25592, no opinion) that the decree of the district court was right in finding that she was only entitled to a life interest in this 80 acres of land and the fee title was in the heirs who are remaindermen under the will of Mary Rasmussen.
It appears that the appellant, Gertrude D. Reed, pro
The case of Gertrude D. Reed v. Victor C. Rasmussen and others was tried before Frederick E. Shepherd, J. H. Broady and Mason Wheeler, district judges, sitting in banc, and she claims this .decree was void for lack of jurisdiction, and she now attempts to have that decree set aside in this action. It is found that the decree entered by these three district judges was adverse to the claims of the cross-petitioner, in that it found that Victor C. Rasmussen did not have a fee title to said estate, but had a life estate therein after the death of his father, with the remainder to certain heirs; and, further, that Zella Rasmussen obtained a divorce from Victor C. Ras
The cross-petitioner insists repeatedly, in her briefs filed in the case at bar, as well as in oral argument, that this court now set aside its former decision, and decree that she has a fee in this property, and cites us to the case of Myers v. Myers, 109 Neb. 230, which holds that, by the rule in Shelley’s case, the word “heirs” is to be taken as a word of limitation, and that she has become
She also calls our attention to the rule established in Grandjean v. Beyl, 78 Neb. 354, holding that, when a former decision of this court has established a rule of property which has been relied upon for many years, the court will not overturn such rule, although it cannot assent to the reasoning upon which it is based, and sets out in her brief that titles depend largely upon previous decision, and frequent changes in interpretation or construction of legal principles would jeopardize titles to real estate, and that when coürts of last resort have announced principles affecting real estate such decisions should not be overruled or reversed except by legislative powers of the state, and cites cases holding that, where courts vacillate, and overrule their own decision, or the construction of statutes affecting real estate, titles to property may be injuriously affected, and insists that the former decision of this court, entered by three district judges in Lancaster county, annihilated the rules of property in this state for the purpose of defeating the cross-petitioner’s lawful title, and that the district court went far beyond its powers to give the fee title to the heirs, and that the judgment then rendered was void.
It is clear from her argument that this same question, as to whether Miss Reed had a life estate or a fee in this came property, was litigated between these same cross-appellants in this former case, and it is not a case where the court in the former case refused to determine the matter. Ryan v. Bullion, 100 Neb. 705. But it was discussed in the briefs and decided in the opinion. A judgment or decree acts as an absolute bar to a subsequent action based upon the same contention, not only as to every matter offered to sustain or defeat such contention, but also as to any other admissible matter which might have been offered for that purpose. Omaha Road Equipment Co. v. Thurston County, 122 Neb. 35; School District D v. School District No. 80, 112 Neb. 867. And
2. Several defendants, and also the guardian acl litem, in their replies to the cross-petition of Gertrude D. Reed contend that, because she only acquired the life estate of Victor C. Rasmussen, it was her duty to pay all of the taxes upon this property, and that, having failed so to do, she had thereby wilfully committed waste; that, in failing to keep the buildings in fair condition, and permitting them to go into decay, and in collecting' something over $2,500 rent, and refusing to spend anything upon the upkeep of the property, save and- except her small expense in shingling the house and making other betterments on the property, she has thereby forfeited her right to a life estate therein.
Cross-appellants, Vernetta Marie Hansen et al., insist that the court erred in decreeing the failure of the life tenant to pay taxes did not constitute waste, and insist that, as the said Gertrude D. Reed conveyed to the state approximately an acre of ground for a highway, for which she received some $210, this conveyance of a portion of the premises entitled the cross-appellants to a judgment against Gertrude D. Reed for the amount received by her for said road, and insist that a life tenant may not keep and use money derived from waste, as to do so would reward the life tenant for wrong-doing.
This is a very interesting point. The state of Nebraska desired to cut in on one corner of this farm to round out a turn in a highway, and it appears that the appellant, Reed, attempted to convey about one acre of land to the state, yet the possession of the state of this land for a road is not adverse to the remaindermen until the termination of the life estate, even though the life tenant conveyed the same by fee title. She did not thereby forfeit her life estate in the remainder of said premises,
The remaindermen further allege that Victor C. Ras7 mussen, through whom the defendant Gertrude D. Reed secured her life estate, is about 50 years of age, and that the life estate will not lapse or determine until the death of said Rasmussen, and that said real estate is worth the fair and reasonable value of $12,000, and asked that a receiver be appointed to take charge of the premises. A special appearance was filed by said Reed and overruled, and a motion for security for costs was also overruled. Upon February 17, 1931, William Holt was appointed receiver for said premises, giving a bond in the sum of $1,000 to the defendant Gertrude D. Reed, conditioned according to law. We have examined the proceedings resulting in the receivership, and the objections thereto, and see no error therein.
3. The cross-petitioner attacks with vigor the proceedings leading up to the transfer of the south 40 acres into the Bennett consolidated school district, being school district No. 8, and out of school district No. 116, in which the entire 80-acre tract had been for many years. In her answer to plaintiff’s petition she denies each and
Examining the exhibits further, it is found that exhibit No. 32 is the tax receipt purchased by the plaintiff for the taxes for 1927. This exhibit shows that the whole tract was assessed for school taxes in district 116, and that the school taxes amounted to $30.60 upon the entire 80 acres for that year.
Exhibit No. 33 is the tax receipt issued to plaintiff for the taxes for the year 1928 upon this land, and shows that the school taxes upon the southeast quarter of the southeast quarter, being the 40 acres transferred into school district No. 8, had a valuation of $5,000, which made the taxes $94.50, and that the other 39.2 acres, upon which he resided, remained in district 116, the deduction of 8/10 of an acre being doubtless for the state highway, and the taxes upon the 40 acres upon which he resided were but $14 upon a valuation of $3,500, so that while the application, exhibit No. 50, to transfer 40 acres was only signed up on May 2, 1928, the taxing authorities made the transfer effective for taxes for the entire year of 1928.
Exhibit No. 34 is the tax receipt purchased by the plaintiff for the taxes assessed for the year 1929, and shows the same valuations, and that the taxes in district No. 8 were $99 and the taxes in district No. 116 were still but $14.
In Ure v. Reichenberg, 63 Neb. 899, it says: “Under such circumstances the legislature has seen fit to relieve the holder of the tax certificate of the necessity, in the first instance, of setting out in his pleadings and producing the assessment rolls and other evidence to prove the liability of the property to taxation, and the regularity of all the proceedings, as he would be required to do to establish a tax title at common law. It is not a hardship upon the property owner to require him to show the reason, if he has any, for his supposed delinquency. If the property was not liable to taxation, or if for any other reason the tax is not a lien thereon, he may avail himself of that defense by proper pleadings and proof.”
By statute, section 77-2040, Comp. St. 1929, tax certificates are foreclosed in the same manner as real estate mortgages. The tax certificate is considered to be the same as a mortgage executed by the owner upon his real estate to the holder of such tax certificate, and it is prima facie evidence of all proceedings prior thereto, as well as that the land is liable to taxation, and in the case last cited it is said: “In an action to foreclose upon a tax sale certificate, if the land was not liable to taxation for the taxes represented by the certificate, or subsequently paid, such defense would be analagous to the defense of want of consideration in the foreclosure of a mortgage. * * * When the defendant has introduced evidence overcoming this presumption, the plaintiff must furnish other evidence. The burden of proof is upon the plaintiff
In the case of Darr v. Wisner, 63 Neb. 305, syllabus 2 states: “Where the levy and assessment are disputed by the pleadings, the presentation of a tax receipt alone does not raise any presumption in favor of the regularity of the assessment or levy of the taxes for which it calls,” and cites the case of Adams v. Osgood, 55 Neb. 766, holding: “A tax receipt is not sufficient to establish the fact of the levy or assessment of taxes when such levy or assessment is disputed in the pleadings.”
In the case of Grant v. Bartholomew, 57 Neb. 673, the opinion and the dissenting opinion covering some 3j0 pages, the- defendant in a tax foreclosure set up that the real estate was assessed to a dead man, and therefore void, and that the board of county commissioners, sitting as a board of equalization, raised the assessment without notice to the landowner for the taxes of several different years, and made a number of other objections to the validity of the taxes. It was held that the action of the county board of equalization, raising the values placed upon real estate without notice to the landowner, was a nullity, but that only so much of the tax as arose out of the difference between the valuation placed thereon by the assessor and the value to which it was attempted to be raised by the board of equalization was illegal, and sets out that it is the theory of our revenue law that a purchaser of real estate at a sale thereof made for delinquent taxes shall not lose his money, and that the county is to reimburse the purchaser for any money paid by him if no tax was legally due upon the land so sold. On the rehearing of this case, found in 58 Neb. 839, it is said that the party seeking the foreclosure of a lien for taxes has the burden of establishing their validity, and that there was a failure of proof to show a compliance with stated statutory prerequisites to the assessments and levies.
In Medland v. Connell, 57 Neb. 10, being a suit to foreclose a tax lien, the defense that the levy for county purposes exceeded the constitutional limit is not available unless raised by suitable averments in the answer. In this case the final paragraph reads: “The authorities of a city of the metropolitan class possess no power to levy a special tax for street improvement until, as a board of equalization, it has determined the amount to be assessed against the real estate as benefits. Counsel for plaintiff concede the invalidity of these special taxes. The decree is reversed and the cause is remanded to the district court, with directions to render a decree for the plaintiff for the amount of all taxes paid by him on the real estate and interest, excepting the special taxes aforesaid.”
Section 79-2101, Comp. St. 1929, was before this court in the case of State v. McCartney, 121 Neb. 153. In this case it was held that, to authorize the transfer of children from one district to an adjoining district, strict compliance with the conditions described by said section must be shown, one of these conditions being that the application must show that the children reside with their parents more than one and a half miles from the schoolhouse in their own district, and nearer to the schooihouse in the adjoining district. The intention of the legislature was that they must live nearer to the schooihouse in the district to which they are to be removed. In exhibit 50, introduced in evidence by Gertrude D. Reed, it is clearly shown that C. H. Monk, in his application to the county superintendent, stated that his residence was just one and a half miles from the schooihouse in his home ■ district,' and that the distance of his residence from the school
In accordance herewith, the judgment and decree of the district court is affirmed, except as to the taxes of school district No. 8. Guardian ad litem fee in this court is fixed at $25. The cause is remanded to the district court, with directions to modify the decree and award to the plaintiff the full amount of the taxes paid by him on said real estate, with interest, excepting therefrom the excess amount illegally levied and assessed for school district No. 8. Each party to pay his own costs.
Affirmed as modified.