This is an action to foreclose an alleged tax lien. The plaintiff prevailed as to part of his demand and has appealed. The defendant Searle has prosecuted a cross-appeal.
Some of the questions of law presented for our consideration should be determined, because they will be involved if the case is again tried in the district court. Mr. Searle will be referred to as the defendant. The defendant owns the east half and the northwest quarter of the northwest quarter and lot 4 in the southwest quarter of the northwest quarter of section 10, in township 22 north, of range 20 west of the sixth P. M. in Loup county, Nebraska. He also owns lot 3 in the southwest quarter of said section. The Loup river severs about 12 acres in the southwest corner of the northwest quarter from the remainder of ■ said quarter section, and divides about 18 acres in the northeast corner of the southwest quarter from the remainder of that quarter section. The last tract is described as lot 3.
In 1894 certain individuals residing in the neighborhood of the defendant’s land incorporated under the name of the Newton Irrigation Company for the purpose of constructing an irrigation canal and through that agency partially dug said ditch. In July, 1895, the stockholders of said corporation, in conjunction with other persons, formed an irrigation district under the provisions of chapter 70, laws 1895 (Comp. St. 1895, ch. 93a, art. III), for the purpose of acquiring the ditch and franchises of the irrigation company and completing said irrigation project. After the district was formed an estimate was made by an engineer of the extent and cost of the proposed ditch, including the value of the ditch to be acquired from
In December, 1907, the district court for Loup county rendered a decree in an action wherein a Mr. Strohl and the defendant herein and other owners of land within the
Most of the questions material for an understanding of the rights of the parties and properly presented in the record can be disposed of upon the defendant’s cross-appeal. In the first place, the defendant argues that the plaintiff does not oAvn- the certificate in suit. An assignment purporting to have been made by Mr. Bleakley appears upon the back of the instrument, but there is no proof that he made the assignment or parted with his title to the certificate. The plaintiff admits in his testimony that he received the instrument from a Mr. Lashmett, and that the name of Lenora Lashmett, the first assignee, if the instrument were assigned by Bleakley, was indorsed after Mrs. Lashmett departed this life. By section 20, art. III, ch. 93a, supra, taxes levied by the directors of irrigation districts are made a lien upon the real estate affected thereby, and all of the provisions of the revenue law for the collection of taxes apply to irrigation district taxes. Section 117, art. I, ch. 77, Comp. St. 1901, in force at the time the taxes in suit Avere levied, and section 210,
The defendant complains that the county treasurer included in the certificate the taxes levied upon lot 3, in the southwest quarter of section 10, and the proof supports his contention; but, if we understand the court’s decree, those taxes are not made a lien upon the defendant’s land situated in the northwest (piarter of that section, nor does the plaintiff recover therefor against lot 3 in the southwest quarter thereof.
It was argued at the bar by the defendant that inasmuch as the certificate described the northwest quarter of the section, a part whereof he did not own, and also included taxes levied upon lot 3 in the southwest quarter, the certificate and the tax are alike void. In Spiech v. Tierney, 56 Neb. 514, we held that, where contiguous tracts of land owned by different parties at the time taxes are levied thereon are jointly valued for taxation and taxed, the tax cannot be apportioned and is void; but in the case at bar each lot and 40-aere tract is separately assessed and taxed, so that, while the sale and certificate are irregular, the transactions are sufficient to subrogate the purchaser to the lien and all of the rights of the public with respect to the tracts of land oAvned by the defendant and situated in the nortliAvest quarter of the section, but the decree-
The defendant argues that since it appears that the officers of the irrigation company conspired with the district directors and the engineer, upon whose estimate the bond election Avas held, to grossly overestimate the value of the uncompleted ditch of the irrigation company, and since the officers of the district AArere stockholders in the company, the holders of the 174 bonds delivered to pay for that ditch did not acquire title to those securities. It is also argued that section 24 of the act is a limitation upon the power of the directors of the district, and compels them to sell its bonds and create a fund before they can impose a liability upon the district for the .purchase or the construction of a ditch. Section 10 of the act aforesaid provides, among other things: “Said board shall also have the right to acquire by purchase any irrigation works, ditches, canals or reservoirs already constructed or partially constructed for the use of said district. In case of purchase the bonds of the district hereinafter provided for may be used at their par value in payment.” Prior to the amendment of section 24 in 1899, it did not refer to the exchange or sale of bonds, and was not intended to limit the specific authority theretofore granted the directors by section 10, supra. The provisions of section 14 of the act, to the effect that no bonds shall be sold until the directors shall make and enter upon the records a
Prior to the amendment of section 24 in 1899, the directors did not have authority to exchange .its bonds in payment for construction work nor to enter into contracts in the name of the district until a construction fund had been created by the sale of its bonds. No construction fund existed at the time the aforesaid contract was made with Mr. Abbott and the contract is therefore void. Lincoln & Dawson County Irrigation District v. McNeal, 60 Neb. 613; Stimson v. Alessandro Irrigation Co., supra; Leeman v. Perris Irrigation District, 140 Cal. 540; Stowell v. Rialto Irrigation District, 155 Cal. 215. Whether any or all of the bonds issued by the district or the coupons clipped therefrom were at any time in the hands of innocent purchasers is not apparent from the record before us, and we do not desire to embarrass a future trial of the case by any suggestions upon that subject. It is apparent that coupons clipped from some of those bonds were transferred by Mr. Bleakley to the county treasurer in payment of the interest tax levied upon the defendant’s land, but the record discloses such
The proof of the defendant’s tender to pay state, county and school taxes levied upon his land is not so definite as to time and amount as to bring him within the protection of the rule annnounced in State v. Several Parcels of Land, 80 Neb. 424, and his offer in his answer to confess judgment for those taxes, with interest, justified the district court in adding interest to the principal.
The plaintiff, in support of his appeal, argues that since the defendant, subsequent to the levy of the taxes in dispute, conveyed the land by a deed which excepted those taxes, and thereafter received title to the real estate by a deed which also excepted all taxes, he is within the rule announced in Eddy v. City of Omaha, 72 Neb. 550. In the cited case invalid assessments were deducted from the purchase price of real estate, and we held that the grantee was estopped from denying the validity of the taxes which formed part of the consideration for his purchase, But in the case at bar the defendant sold the land
The judgment of the district court is reversed, the cause is remanded for further proceedings, and the costs of this appeal are taxed to the plaintiff.
Reversed.