8 Neb. 120 | Neb. | 1879
The plaintiff is the owner and in possession of the north half of section 25, in township 8, range 13, in Otoe county. On the sixteenth day of- November, 1875, the land in question was sold by the treasurer of Otoe county to the defendant for the taxes of 1873, and certificates of purchase issued to said purchaser.
The defendant filed a cross petition alleging that he purchased said lands for the delinquent taxes of 1873, amounting to the sum of $288.18, and that he paid the taxes due thereon for the year 1874, amounting to the sum of $144.34, and also for the year 1875, amounting to the sum of $138.00. The defendant prays for a decree, declaring said tax sale legal and valid, but in case tbe court is of tbe opinion tbat said sale is invalid tbat be may be adjudged to have a lien upon said land for said taxes, etc. A decree was rendered in tbe court below in favor of tbe plaintiff, but refusing tbe defendant any relief. The defendant appeals to this court.
Tbe principal questions involved in this case have already been determined in tbe case of Pettit v. Black, ante page 52, and it is unnecessary to review them here. Tbe petition alleges tbat tbe plaintiff has tbe legal title, and is in tbe peaceable possession, etc., there being no allegation tbat tbe plaintiff was tbe owner and in possession of said land at tbe time tbe same was assessed and tbe taxes were levied. Deeds, however, were introduced by tbe plaintiff showing title in him since 1864-5. Tbe only objection made by tbe defendant being tbat such deeds were “irrelevant and immaterial.” Tbe plaintiff also testified, without objection, tbat be bad been in actual possession of tbe land for seven or eight years.
This court has decided in a number of instances that objections to testimony must be specifically pointed out, otherwise if tbe testimony is admissible for any purpose, tbe objection will be unavailing. Morgan v. Larsh, 1 Neb. 363; Pyle v. Warren, 2 Id., 248; Tecumseh Town Site Case, 3 Id., 279; Michel v. Ware, 3 Id., 235; Horbach v. Miller, 4 Id., 48.
It clearly appears that at the time these taxes were assessed and levied and became delinquent, Wilhelm had several thousand dollars in personal property in Otoe county, and that no attempt was made to collect these taxes. Section 50 of the revenue law requires the treasurer to proceed as soon after the first of May as practicable, and make the delinquent tax out of the personal property of the delinquent, if such property can be found ;• and this provision shall apply to taxes assessed on real estate, and remaining unpaid, as to delinquent taxes assessed on personal property. [Gen. Stat., 916.]
As is said in Johnson v. Hahn, 4 Neb. 147, “the express purpose of the statute is, and it seems to be the universal rule of law, unless changed by positive statutes, that if coercive measures become necessary, they shall in the first instance be directed to the personal property, and the ;real estate on which the tax is imposed shall not be resorted to until the personal property is first exhausted.”
This rule is clearly applicable in this case. The law imposes a duty upon the treasurer which he cannot evade. He must collect the tax out of the personal property of the delinquent if a sufficient amount can he found in the county. As the treasurer entirely .failed in this ease in the performance of his duty in that regard, the sale of the land is absolutely void; but as the property seems to have been properly assessed, and the taxes legally imposed, the appellant is entitled to be subrogated to the rights of the county in the taxes in question. The case will therefore be referred to the clerk of the district court to ascertain the actual amount paid by the appellant in the payment of said
Reversed and remanded.
