65 Neb. 93 | Neb. | 1902
Lead Opinion
This is a rehearing. The facts are stated in the former opinion (Philadelphia Mortgage & Trust Co. v. City of Omaha, 63 Nebr., 280), but may be restated briefly as follows : One Bolin, city treasurer of the defendant municipality, obtained a loan of plaintiff secured by mortgage upon real property. At that time the taxes upon the property for certain years and certain instalments of special assessments thereon were marked “Paid” on the tax records of the city, as required by law when such taxes or assessments are collected. The plaintiff after-wards became owner of the property through foreclosure of its mortgage. In fact, the taxes had not been paid, and we may take it that the false entry upon the records was a fraud upon the city as well as upon the mortgagee. After plaintiff took its mortgage, the word “paid” was erased, and the taxes and assessments once more appeared as liens upon the property. Thereupon plaintiff brought this suit to quiet its title, remove the cloud thereon by reason of the taxes and assessments, and require said taxes and assessments to be noted as paid upon the records. The district court dismissed the suit, and its decree was affirmed at the former hearing.
If this objection did not exist, however, there is another
But here the taxes themselves are valid, and they were not levied or assessed for an unauthorized purpose. Plaintiff’s contention is that for other reasons it ought not to pay them, and they ought not to be held a lien on its land. Such claims come fairly wdthin the scope and purpose of section 144, and afford no ground for injunction or proceedings in equity tantamount thereto. If the tax is not wholly void in itself, nor levied or assessed for an unauthorized purpose, one aa71io claims for some other reason that he or his property should not be held to pay it, is left to the remedy provided by said section 144, or to make his defense when the alleged tax lien is sought to be enforced. Chicago, B. & Q. R. Co. v. Cass County, supra; Bellevue Improvement Co. v. Village of Bellevue, 39 Nebr., 876, 885; Spargur v. Romine, 38 Nebr., 736.
Hence Ave do not think it necessary to decide whether or how7 far the doctrine of equitable estoppel may be applied to a municipal corporation acting in its governmental capacity, nor w7hether the acts here in controversy are to be put in that category. Tine former opinion states the arguments, and cites the cases in support thei*eof, Avhereby it is contended that the doctrine does not apply. On the other hand, it might be argued that though courts can not
By the Court: For the reasons stated in the foregoing-opinion, the former:judgment of this court is adhered to and the judgment of the district court is
Affirmed.
Concurrence Opinion
Í ‘concur in the conclusion reached.