10 Neb. 65 | Neb. | 1880
In November, 1878, the plaintiffs filed a petition in the district court of Lancaster county, praying for an injunction to restrain the county treasurer from executing a tax deed upon certain real estate in Midland precinct, in said county, which had previously been sold to Charles R. Dewey by said treasurer for the taxes due thereon for the year 1876, and that the purchaser of said lands at tax sale may be required to surrender his certificate, and that the same shall be canceled, and for such other relief as may be just and right. The sole ground upon which relief is sought is that the assessor for that year failed to make and attach the oath required by the statute to the assessment roll. An answer was filed by the defendants to the petition in substance denying the material allegations of the petition, and alleging that said lands were legally sold. On the trial of the cause two assessment rolls from that precinct for the year the lands in question were assessed and sold were introduced in evidence, one of real estate and one of the personal property in said precinct, the statutory form of oath of the assessor being attached to the roll containing the list of personal property. Whether the lists were returned by the assessor to the county' clerk in this manner does not appear. The court found generally for the defendants and dismissed the action. The plaintiffs bring the cause into this court upon a petition in error.
The plaintiffs place great reliance upon the case of Morrill v. Taylor, 6 Neb., 236. That was an action of ejectment to recover the possession of certain real estate sold for taxes. In that case it was expressly stipulated “by and between the parties that the assessment rolls for the years 1869, 1870, and 1871, which included the land in question, nor any of them, did not
-The decision is placed upon the ground that a party cannot be divested of his title to real estate by tax proceedings without a substantial compliance with the statute providing for the assessment and collection of taxes. And where it is conceded, as in that case, that an essential prerequisite to the right to tax had not been complied with, the title must fail — that is, the party having relied upon his tax deeds, which, having failed, the defendant could not resist the plaintiff’s right to the possession of the land. But is the landowner in as favorable a position when he invokes the aid of a court of equity to enjoin a tax deed from being executed by the treasurer to the purchaser at tax sale of his real estate upon the ground alone that the oath was not made and attached to the assessment roll ? An examination of the statute and the authorities will determine.
Section 61 of the revenue law provides that “ taxes upon real property are hereby made a perpetual lien thereupon, commencing from the first day of March of the current year, against all persons and bodies corporate, except the United States and this state.” [Gen. Stat., 917].
It will be seen that by our statute taxes are made a perpetual lien upon real estate, and that the legislature has no power whatever to release property from the payment of its due proportion of taxes.
In Frazier et al. v. Sierbern, 16 Ohio State, 614, the plaintiffs were shareholders in the First National Bank of Cincinnati, and in the year 1865 their several shares in the bank were assessed as personal property at their par value, no deduction being made for capital invested in U. S. bonds, nor for real estate which was taxed to the bank. The act of congress authorizing national banks provides that shares shall not be assessed for state taxes at a greater rate than that imposed upon “ other moneyed capital in the hands of individuals of the state,” and that the. tax shall not exceed the rate imposed upon the shares in any of the banks organized under the authority of the state where such association is-located. The plaintiffs alleged in their petition for an injunction, that the tax sought to be enjoined was unauthorized by law and in violation of the above provisions of the act of con
In Morrison v. Hershire, 32 Iowa, 271, the petition alleged that the plaintiffs wore residents and property owners of Iowa city; that by certain ordinances and resolutions passed by the city council, parts of certain streets which were used as a thoroughfare between the railroad depot and the business portion of the city had been improved, and the cost of the improvement assessed, upon the lots abutting on the streets, each lot being assessed with the cost of the improvement of the street adjacent thereto, and that the plaintiffs separately were the owners of such lots; ánd that the special tax so levied had been placed upon the county tax books and delivered to the collector for collection. The plaintiff then set out the ordinances and resolutions under which the tax was levied, and alleged that the assessment was illegal and void. The court say: “¥e understand that it is a settled rule in equity, that where a party is in conscience bound to pay a certain sum of money which, together with an
In the case of Harrison v. Haas, 25 Ind., 281, Haas filed a petition in the Morgan circuit court, stating that he was the owner of certain real estate which had been sold fdr taxes, and that a certificate of purchase had been executed by the auditorio the purchaser at the tax sale. It was also alleged that at the time of the assessment and levy of said taxes the plaintiff Avas the owner of personal property in said county liable to sale for taxes of the value of $500, and that he Avas still the OAvner of the same; that the treasurer, without searching for personal property, advertised and sold said real estate. The plaintiff prayed that said certificate be canceled, and that the auditor be enjoined from making a deed to the purchaser at tax sale. The court held that a demurrer to the petition should have been sustained. The court say: “He asks a court of equity to place him-in a better position than he >vould have occupied if he had at the proper time paid the taxes legally assessed against him, and which were a lien upon his land; that the court shall remove the cloud without the payment of the debt. Qui sentit commodum sentire debet et onus is a maxim of the laAv, and although the law cannot apply its maxims in all cases, yet equity will not violate them. It will not so much as lift a finger’ to remove a cloud while a moral obligation remains undischarged.”
In the case of Bond v. The City of Kenosha, 17 Wis., 284, an action was brought to restrain the defendants from executing tax deeds of certain lands in the city of Kenosha, sold in 1858 by the treasurer of Kenosha county for the taxes of 1857. The petitioner alleged in substance that the sales were illegal because certain property belonging to certain railroad companies was omitted from the assessment roll, and also because of a tax illegally levied by the common council of the city for the construction of a harbor therein. It was also alleged that the plaintiff had within the city, all the time the tax list and warrant were in the hands of the treasurer for collection, a sufficient amount of personal property upon which to levy and collect said taxes. On demurrer to the answer setting up the amount levied for city, county, school, state, and harbor tax, the court say : “ Here there can be no difficulty in determining the amount levied for state, county, city, and school purposes, and the respondent ought to pay those taxes even if he is right in the theory that the other tax is wholly void.” And the principle of requiring the plaintiff to pay the amount of taxes equitably due as a condition of relief, was re-affirmed in Mills v. Charleston, 29 Id., 400.
In the case of The City of Ottawa v. Barney, 10 Kansas, 270, the plaintiff in the court below filed a petition to enjoin the treasurer of Eranklin county from selling certain real estate of the plaintiff’s in the city
In Challis v. Coms. of Atchison Co., 15 Kansas, 49, on an application for an injunction to restrain the issue of certificates and the execution of tax deeds upon a number of lots belonging to the plaintiff in the city of Atchison, the objections alleged were, 1st, that no due assessment and valuation of each parcel of real estate within the township and city of Atchison was made for the year 1869, and returned duly verified, etc., before June 1, 1869, nor was plaintiff’s property so assessed’and returned in a book, etc., as required by law; 2d, that the pretended assessment was made for 1869 without the assessor having received the assessment roll of 1868 before March 1, 1869; 3d, that more than half the taxes were percentage levied by the mayor and council of the city of Atchison, and the same were not certified to the county clerk before August 15th, 1869, or at any other time for 1869; 4th, that the treasurer did not cause notice to be published stating the amount of taxes and the time and place when the treasurer and 'liis deputy would attend to receiving taxes. The fifth and sixth assignments refer to the advertisement aud sale. An injunction was
In Briscoe v. Allison, 43 Ill., 291, it was held that where a bill is filed to stay the collection of a tax levied to pay county orders issued for bounties, a portion of which are authorized by law, the court should ascertain the amount the unauthorized bear to those authorized, and reduce the levy by the proportion the former bears to the latter, and require the remainder to be collected and applied to the payment of those legally issued.
In the case of The C. B. & Q. R. R. Co. v. Frary, 22 Id., 34, a bill was filed to restrain the treasurer of Bureau county from levying, selling, or distraining the property of the company for the taxes levied in that county. On the hearing, the injunction was dissolved, and the bill dismissed. On appeal to the supreme court, the court say : “ The decisions of this court show, that in a large majority of the cases involving the regularity of the proceedings for the collection
In the case of Merrill v. Humphrey, 24 Mich., 170, a bill was filed to restrain the auditor general and the county treasurer of Osceola county from proceeding to sell the lands of complainant, alleging that such lands were fraudulently assessed above their value, and very much beyond the assessment of other .property. The complainant alleged that he was ready to pay his proportion of said taxes whenever the same should be
A party seeking relief in a court of equity from taxation, which is claimed to be unauthorized, must bring his case within some recognized rule of equity jurisprudence. A court of equity is not a court of errors to review the proceedings of those officers intrusted with the assessment of property and collection of the revenue. If their proceedings are invalid no title will pass by a sale of real estate for taxes, and this question may be litigated in an action at law for the possession of the premises, as in such ease the party claiming under a tax deed must stand or fall upon the strength of his title. But if the owner of the land does not wish to take the hazard of an adverse title being made to his land by tax deed, the legality of which remains undetermined, and files his petition in equity to enjoin the execution of such deed, he must do equity by paying, or offering to pay, his just proportion of the public burden. In an action at law he relies upon his naked legal rights, and asks no aid from the court. In an action in equity he seeks the aid of the court to remove a. cloud from his title, and save him from the hazard of an adverse title, and unless he offers to do equity he presents no case for equitable relief. The burden of taxation is intended by the law to be laid equally upon all taxa
If this action can be maintained the strange spectacle will be presented of a state whose laws require all property to contribute 'its proportion to the public burdens, but the courts of which enjoin the collection of taxes, which are just and equitable, and a proper charge upon the land sought to be exempted, upon the sole ground of the neglect of the assessor to make and file a proper oath. No case has been cited, holding that such is the law, and I think none such can be found. The cases by the appellant are of an entirely different nature from the one at bar, and have no application.
As was said in the case of Jones v. Summer, 27 Ind., 510, where one appeals to a court of equity for an injunction, he must rely upon some substantial equity, and cannot avail himself of naked irregularities, or the neglect of mere forms, to shield -himself from a liability confessed to' be just. As there is no equity in the petition, the judgment of the court below dismissing it must be sustained.
Judgment amtrmed.