35 Neb. 297 | Neb. | 1892
The plaintiff herein filed in the district court of Douglas county five petitions praying for decrees of foreclosure of tax liens upon as many separate lots of land, to-wit: the east thirty-two feet of lot 2, and all of lots 3, 6, 7, and 8 in block 70 in the city of Omaha. The several actions were consolidated by order of the district court and tried together. From the judgment of the district court the plaintiff appeals. From the bill of exceptions it appears that on the 8th day of September, 18Í5, the property above described was sold by the treasurer of Douglas county to plaintiff for delinquent taxes and that treasurer’s deeds were subsequently executed in his favor. The deeds aforesaid it is conceded are void on account of informalities in their execution. Plaintiff has also paid taxes subsequently assessed against each of said lots. In the action involving lot 3 Jackson B. Whittier is made a defendant since he also claims a lien by reason of a subsequent purchase for delinquent taxes. He answered setting up his lien and
“First — That the proceedings of the assessor and other officers preceding the charging of the taxes upon the books of the city and county treasurers were irregular and of so defective a character as to render the taxes charged void and not a lien upon the property.”
The principal objections to the proceedings are that the property was not listed by the owner, and no refusal to list, or other reason why not so listed, was given by the assessors; that the assessor’s oath was not attached to the rolls; that the name of the owner was not, in most instances, given, and, in such instances, that the lots were not assessed as unknown, and other like irregularities. No claim is made to the effect that the amounts charged were excessive, or that the payment thereof would burden the defendant beyond his fair proportion of the taxation required for the needs of the public. It has been frequently held by this court that in equitable proceedings to foreclose liens for taxes we will not consider objections which go only to the manner of the assessment, or the levy of the tax, or the conducting of the sale. (See Otoe County v. Mathews, 18 Neb., 466; Lammers v. Comstock, 20 Id. 345; Merriam v. Dovey, 25 Id., 622.) These cases are in point and are conclusive of the question.
The second defense is that the property in question has no legal existence, for the reason that no such description of land is anywhere recorded. The material facts, as shown by the bill of exceptions, are as follows : Early in the year 1854 several citizens of the state of Iowa associated themselves together under the corporate name of the Council Bluffs and- Nebraska Ferry Company, for the purpose of locating a town on a site within the present boundaries of
Mr. Jones began his work on the west bank of the Missouri river, near what is now known as Uer’s distillery, from thence he ran a line west to Sixteenth street, and from thence north and west to about Byron Reed’s present addition to the city, and from thence directly nvrth to Webster street, and from thence east to the Missouri river, and thence along the line of the river south to the place of beginning. The claim thus laid out was known as the claim of the Council Bluffs and Nebraska Ferry Company. Afterwards the company employed Jones to survey a part of this claim into lots and blocks, streets and alleys; he did so, and made a plat of the area now lying between Jackson street on the south, Webster street on the north, Ninth street on the east, and Sixteenth street on the west. He made a manuscript plat thereof, and the town which he thus laid out was called Omaha. He designated the corners of lots and blocks and streets and alleys with hardwood stakes driven into the ground. Such stakes remained in existence for many years thereafter, and many of them up to a comparatively recent date, but at the present time all have rotted away or have been otherwise destroyed. According to this survey and the plat subsequently prepared by Mr. Jones, block 70, the property in controversy, was subdivided into eight lots fronting endwise toward the east and west. The dimensions of the lots and blocks were not indicated on the plat, but from the bill of exceptions it appeal’s that the lots were sixty by one hundred and thirty-two feet in size. Block 70, as shown by the Jones plat and all subsequent plats and maps of the city, is bounded as follows: On the east by Ninth street, on the west by Tenth street, on the south by Capitol avenue, and on the north by Davenport street.
Shortly after the Jones survey the land included therein was entered in trust for the owners and occupants thereof by the mayor of Omaha, who subsequently conveyed the property, designating the lots and blocks as indicated by the Jones map. In the summer of 1855 defendant Estabrook
It is apparent to us from the record that the maps prepared from the Jones survey, and on which the lots in block 70 front endwise to the east and west, are the ones generally recognized and accepted as correct by the property owners and the public officers of the city of Omaha and Douglas county. In accordance with that survey the
In a brief of considerable length and unusual merit counsel for defendant has assailed the rule as well as the reasoning in Bryant v. Estabrook. In that case it is said: 41 The authorities are not all one way, and yet it is perhaps fair to say the weight of authority cited sustains his (defendant’s) position.” We are constrained to make the same admission. The earlier cases and many recent ones in other states tend to establish the rule that for the purpose of taxation the property must be described by reference to the go.vernment survey, or, if subdivided, by reference to an authenticated plat. The proposition, however, ia that on the facts in this case the defendant is in no position to invoke that rule in his behalf. Such was the view of the court in Bryant v. Estabrook. We are convinced that the rule there announced is in all respects equitable, and are satisfied to adhere to it.
There is a further contention, viz., that as a considerable portion of the taxes in question were paid by plaintiff after his purchase in 1875, and were levied for years prior to the taxes for which he purchased, he cannot recover in this action. This claim is based upon the language of the act of 1871, which provides that “such purchaser, his heirs or assigns, may pay all taxes lawfully assessed on the real estate after such purchase, and when the said title shall fail shall have a lien for all such taxes.”
In Miller v. Hurford, 11 Neb., 385, the land had been sold for the taxes of 1873 and 1874. In the decree of foreclosure, taxes subsequently paid for the years 1870 and 1871 were included. In the opinion the present chief justice says : “We are not entirely clear as to the right of the plaintiff to include taxes paid for the years 1870 and
Judgment accordingly.