Newcomb v. HendersonNewcomb v. Henderson
Lead Opinion
Aрpellee, plaintiff below, brought his action in the district court to quiet title to the south half of
Plaintiff asserts that the tax deed abovе mentioned was void on its face, for the reason, as he contends, it shоws that the land described in it and involved in this action, was bid in by the county on the first day it was offered for sale by the county treasurer, contrary to sec. 3888 M. A. S., sec. 5713 R. S., then in force.
1. It is true, as appellant contends, the deed does nоt recite in terms that the property was not offered on the first day of the sаle, to-wit: October 29th. Therefore, he asserts, from the recitation in the dеed, that the land was “struck off to the said county, and certificate of sаle was duly issued therefor to the said county, in accordance with the statutes in such case made and provided,” and from recitations of similar import we must infer, in the absence of рroof to the contrary, that the treasurer did offer the land on the first day of the sale, and that it was not sold on the first day it was offered. This precise сontention has been determined adversely to appellant’s views in Bryant v. Miller,
2. Prom the testimony of the county treasurer and by his records, it is made to appear that the
“Where there are two or more lots or tracts of land valued and assessed jointly, the treasurer shall sell the same jоintly as assessed.”
Appellant admits that the records of the county treasurer do show that the land was offered and sold in forty-acre tracts, although assessed as a part of, a one hundred and sixty-acre tract, but he сontends, as we understand the argument, that this plain violation of the statute can avail appellee nothing unless and until he shows that he has been рrejudiced thereby. The record shows that the two tax certificates wеre issued for the two forties constituting the eighty in question, and these two certificates were later assigned by the county to appellant’s grantor. Wе think it may be assumed, in the absence of evidence to the contrary, thаt the sale of land for taxes in separate tracts requires the issuance of extra certificates, and entails additional costs. Once it be shown that a positive mandate or statute has been ignored in connеction with a tax sale, the grantor under a tax deed flowing therefrom, will not bе heard to say that his adversary must go further and prove the damages he has suffered as a result of the violation of the statute. No attempt was made on the part of appellant to offer proof tending to еstablish that the irregularity in the sale of the land, in the particular pointed оut, occasioned the fee owner no extra expense or cost, therefore, it is not necessary for us to determine whether a violation of a statute resulting in no
• The tax deed offered by appellant was properly excluded, and the judgment will be affirmed.
Affirmed.
Concurrence Opinion
concurs in the result, and so much of the opinion as is based upon the ruling announced in the case of Bryant v. Miller,