Sanford v. Moore, 58 Neb. 654

Sanford v. Moore

58 Neb. 654 | Neb. | 1899

Norval, J.

This is an appeal from a decree foreclosing a tax-sale certificate. It. is urged by tine defendant, as a reason Avhy plaintiff is not entitled to a tax lien, that the real estate was not sold by the county treasurer of Saunders county to the plaintiff at a public sale, but that the premises were sold privately, without having been offered at public sale. This contention is based upon the fact that the treasurer did not formally adjourn the tax sale from day to day, and that that official failed to publicly cry each parcel of land offered and sold. But these irregularities did not defeat the lien of the purchaser, for by section 142, article 1, chapter 77, Compiled Statutes, a tax sale is not invalidated by “the failure of the treasurer to adjourn such sale from time to time as required, by 1 aw, or any irregularity or informality in such adjournment; the failure of the county treasurer to offer any real estate for sale at public sale which may afterwards be sold at private tax sale, and any irregularity or informality in the manner or order in which real estate may be offered for *655sale at public sale.” These matters are by statute designated irregularities merely, which do not affect the sale of real estate for delinquent taxes, to such an extent as to deprive the purchaser of his lien. Plaintiff submitted to the county treasurer a bid on paper for the real estate in dispute, and other lands, offering the amount of delinquent taxes thereon with interest, penalties, and costs. No other bid was offered by any person. The property was sold to plaintiff on his bid, and a certificate of sale issued to him. No fraud in the condfict of the sale is alleged or shown, and although the sale was irregular it -vyas not absolutely void. The supreme court of Iowa, in Leavitt v. Watson, 37 Ia. 94, in considering a similar salé, used this language: “Now it may be conceded that if the lands in question were sold according to this custom or habit of the treasurer, viz., of receiving bids on paper, and if no further bids were made for the same land, to enter it as sold to such bidder without publicly crying the bid, and-without publicly striking down the land as sold, such sale would not be made in the manner required by the statute, yet it would be a sale in fact nevertheless. The evidence of the treasurer shows that his custom was to publicly offer the lands for sale for the taxes delinquent thereon; that if bids were handed in, and there were no other bids for the same land, he entered the same as sold without further offering the land for sale. Now wliile this may have been irregular and not according to the manner in which the sales ought to have been made, it is, nevertheless, a sale in fact. * * * The position of appellee’s counsel is that unless the sale is a legal one, it is to be treated as no sale whatever, and the argument is that the sale is not legal unless made in strict compliance with the directions of the statute. To adopt this view would be to constitute the manner of making the sale the essential thing, whereas the saleyis the essential matter. * * * In order to divest the title of the owner of lands by a sale thereof for taxes, there must be a sale in fact, but it is not essential that it should be in form and *656manner as the law directs.” To the same effect are Slocum v. Slocum, 30 N. W. Rep. [Ia.] 562; Dodge v. Emmons, 9 Pac. Rep. [Kan.] 951. The taxes for which the real estate ivas sold were legally assessed, and under the repeated decisions of this court the purchaser acquired a lien on the property. (Medland v. Cornell, 57 Neb. 10, and cases there cited.)

Lastly, it is argued that the receipt by the county treasurer of $81.56 from defendant on December 21, 1891, discharged plaintiff’s lien. This sum did not cover the entire amount then due plaintiff on his tax certificate and did not discharge the lien. Moreover, the record shows that the treasurer did not receive the money officially, but as agent merely of the defendant for the purpose of tendering the same to the plaintiff. The decree is right, and must be

Affirmed.