Roads v. Estabrook

Post, J. 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 — 300 — praying for a decree of foreclosure. There is no controversy with respect to the purchase of the property for delinquent' taxes, or the amounts of the payments therefor, by plaintiff or Whittier. The defenses relied on are two in number and will be noticed in the order presented. “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 — 301 — the city of Omaha. For that purpose they employed A. D. Jones to make a survey of the premises. At that time Nebraska had just been organized as a territory, but no part thereof had been surveyed by the government. 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. — 302 — From the plat or manuscript map aforesaid the first printed map of Omaha was copied, and which has since been known as the A. D. Jones map. In the year 1855 the company aforesaid caused another plat to be made, embracing the area surveyed by Jones and including other contiguous territory, all of which they called the plat of Omaha city. That part surveyed by Jones was not resurveyed, and there never has been a survey for the purpose of designating streets and alleys, lots and blocks, other than that of Mr. Jones. Upon the plat of the second survey and the map subsequently issued in accordance therewith no dimensions of lots or streets and alleys appear. Upon it block 70 is designated as on the first or Jones map, subdivided into eight lots, but fronting endwise toward the north and south instead of the east and west as on the Jones map. In 1857 another map was printed, known as the Poppleton & Beyers map, purporting to embrace-the same area as the former maps. On this map block 70 appears as on the Jones map, except that the lots front endwise to the north and south as in the last named map. Afterward a map was issued by O. F. Davis, which, with respect to block 70, followed that of Poppleton & Beyers’. It appears that the two maps last named were in common use during a limited time only. They were followed by maps issued by Byron Reed and Geo. P. Bemis, which, as regards block 70, conform to the Jones survey and map. Subsequent maps have followed the Jones survey. During the years when the faxes in controversy were levied, either the Reed map, or others subsequently issued, but conforming to the Jones survey, have been in general use in the city. 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 — 303 — took possession of the lots in controversy, and has ever since continued in possession thereof, either by himself or tenants. On the 5th day of May, 1857, Enos Lowe, mayor, conveyed said lots to defendant by deed, which is the basis of his title. In said deed, at the instance of the defendant, the description of the lots is made to conform to the subdivisions of the Jones map, and also of that of Poppleton & Beyers, the description beiug as follows; “All those tracts or parcels of land being in the city of Omaha, * * * as originally surveyed by A. D. Jones, and lithographed by the Council Bluffs and Nebraska Eerry Company, to-wit, lot 8, .in block 70, being the south half of lots 7 and 8, of the plat of Poppleton & Beyers,” etc. He testifies that he had the property thus described in accordance with both maps as a precaution in order to avoid future doubt or uncertainty as to the boundaries of his property. It appears from the testimony of J. M. . Wool worth, who prepared the form of deed used by the mayor, and before whom most of the deeds were acknowledged, that as a rule such deeds contained no reference to’ any plat or map except the so-called Jones map. Among other things the witness says: “ Some of the parties applying for deeds requested that reference be made to the plat of Poppleton & Beyers, but not many.” Mr. Poppleton testifies that the Poppleton & Beyers map was a business venture of the firm of which he was a member. It was prepared by his partner, and he is unable to say.whether or not the latter had ever surveyed the territory in question or had ever been engaged in subdividing any part thereof into lots and blocks. 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 — 304 — property of the city has been assessed for taxation for more than thirty-five years. Omaha has in that time grown from a frontier village to a city of 150,000 inhabitants. Defendant’s property has in the meantime increased in value many times. Thousands of dollars have been contributed by adjoining proprietors as taxes levied by the county and city, which have been expended for costly improvements, thereby enhancing the value of the property in question. Shall he now be relieved from his just contribution to the public revenue because the original proprietors of the town site have neglected to comply with a direction of the statute, to have a copy of the plat filed and recorded in the proper office? The survey, although irregular in not recording the courses, distances, etc., is the one through which defendant must trace his title for any purpose. From the stakes set out by the surveyor the boundaries of the lots were readily determined, and according to them he enclosed the lots in 1855. He has also subsequently recognized the accuracy of the survey and map of Mr. Jones by leases and conveyances of parts of the property in question. For instance he has frequently executed leases for parts of the property which must be referred to the Jones survey, as otherwise they would include property which he did not own, occupy, or claim. Thus far we have made no reference to the case of Bryant v. Estabrook, 16 Neb., 217. In that case the same question was presented, involving the same property, when it was held that the city of Omaha, having in fact been laid out into streets and alleys, lots and blocks, more than twenty-five years previous, during all of which time the streets and alleys had been used and enjoyed by. the public and the lots taxed as such, the regularity of the proceeding, including the laying out, platting, and recording thereof, will be presumed. It is urged that on the facts of this case it is distinguishable from that, but we think otherwise. The view we are disposed to take is that the facts — 305 — disclosed by the evidence in this ease, except as to the filing and recording of the plat, are those which, as said by the court in Bryant v. Estabrook, will be conclusively presumed. 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 — 306 — 1871, but no objection is made to the judgment on that ground.” In Shoenheit v. Nelson, 16 Neb., 235, the chief justice, referring to the doubt expressed in Miller v. Hurford, of the right to include taxes paid since the purchase of land at tax sale but for previous years,,says, “A mortgagee to protect his security may pay taxes which are a legal charge upon the mortgaged premises.” And after citing authorities in support of the foregoing proposition, continues: “ The extent to which this rule would apply in favor of a purchaser at tax sale is not now before the court, although no good reason would seem to exist against its application in such case.” The act of 1871, however, is not the only provision upon the subject. By section 1 of the act approved February 19, 1875 (sec. 1, art. V, revenue law), it is provided, “That any person, persons, or corporation having by virtue of any provisions of the tax or revenue laws of this state a lien upon any real property for taxes assessed thereon may enforce such lien by an action in the nature of a foreclosure of a mortgage for the sale of so much real estate as may be necessary for that purpose, and costs of suit.” By the revenue law then in force taxes were declared to be a perpetual lien on the property. It was in terms provided by section 64 (Gen. Stats., 922), that the owner may redeem within two years, by paying the amount named in the tax certificate, with interest, together with all other taxes subsequently paid, whether for any year or years previous or subsequent to said sale. The various provisions above referred to must be construed together, Our conclusion from them is that plaintiff's title having failed, he is entitled to recover all the taxes for which he has a lien, which will include not only taxes for which the property was sold, and such as were subsequently levied, but also such as were levied for previous years and paid subsequent to the date of his purchase. The judgment of the district court is reversed and the case remanded for an accounting in that court, or if plaintiff — 307 — should elect to have final judgment entered in this court it will be referred here for an accounting. Judgment accordingly. The other judges concur.