Frank v. Scoville

Eyan, 0. In Ms petition filed in the distinct court oí Hall county the plaintiff alleged that by purchase from two heirs of Leonard Burge, deceased, he had become and still continued to be the owner of an undivided two-thirds of certain lots which he described. Libbie 0. Scoville, it was alleged, was the holder of a certain invalid tax deed, which created a cloud upon plaintiff’s title, and it was prayed that the amount necessary to enable plaintiff to redeem should be ascertained by the court, that plaintiff might be adjudged entitled to redeem therefrom, and that, upon such redemption being made, plaintiff’s title might be quieted. By her answer, Libbie C. Scoville admitted that there had been made to her, by the treasurer of Hall county, a tax deed which, as she alleged, was valid and gave her full title to the lots described in plaintiff’s petition. This defendant in her answer also alleged that, as the widow of Leonard Burge, she was entitled to dower in the lots in controversy, which dower she prayed might be set apart for her. She furthermore answered that she had paid the taxes from the year 1874 to 1890, inclusive, which, with interest thereon, amounted to $225, and had on July 12, 1876, paid off a mortgage made on said lots by Leonard Burge and herself, for which purpose she had been required to pay, and had paid, on or about December 24, 1884, the sum of $144, which sum, with interest to January 1, 1892, amounting to $244.80, with the aforesaid taxes, this defendant prayed to be decreed a lien on the aforesaid lots paramount to every other claim. These averments were denied in the reply, and the statute of limitations was pleaded as to payment of the mortgage described. There was a decree which allowed Libbie 0. Scoville $250.61 for and on account of taxes, and created this the first lien upon the lots in controversy. In the brief submitted on behalf of the appellant, Mrs. Scoville, there was a complaint that the court allowed [171] nothing on account of tbe mortgage. There was no sufficient proof pointed out by the brief of appellant as to wliy such mortgage should have been reinstated in favor of Mrs. Scoville, and we have been unable to find any evidence that she paid it, for the release was silent as to who had paid, and upon this point there was no other evidence. So, too, as to the alleged dower interest of Mrs. Scoville, there was proof that at the time of the death of Leonard Burge she was his wife, while there was some testimony tending to show that he had obtained a divorce from her. After this cause had been tried, and on April 15, 1893, contemporaneously with the entry of the decree, the attorneys for Mrs. Scoville notified the court and desired that she might have leave to file an amended and supplemental answer, thereafter to be prepared. This was filed June 19, 1893, although the record shows that the motion for leave to file the same was denied on that day, except for the correction of a mistake disclosed by the decree itself. The matter which the court refused to allow to be pleaded was the payment of an alleged sidewalk tax of $41.55, made during the pendency of the action. There had been introduced no evidence requiring this proposed amendment of the answer, and it was no abuse of discretion for the court to refuse this new cause of action to be stated more than two months after the judgment which settled all matters as to which issue had been joined, and which had not by the decree itself been expressly excepted from its operation. In the discussion of the only question presented, to-wit, the rights of Mrs. Scoville with respect to the taxes paid by her, there was, between counsel, charges and counter-charges of improper conduct with reference to the tax deed made to Mrs. Scoville. Whether or not there was on it a seal, originally, and whether or not there was sharp practice in obtaining an inspection of such deed to obtain evidence of the non-existence of such seal, and whether or not a seal was surreptitiously placed upon [172] the deed after tbis action was begun, are matters of no real importance in view of tbe bolding of tbis court in Thomsen v. Dickey, 42 Neb., 314, and Larson v. Dickey, 39 Neb., 471, for, under tbe rule announced in those cases, a seal in any event could effect nothing. There is no claim that tbe court erred in tbe amount of tbe assessment on account of taxes paid, and it was proper to establish tbis as a lien upon tbe interest of plaintiff in tbe aforesaid lots,, and Mrs. Scoville was entitled to nothing more than was by tbe decree awarded her. (See Adams v. Osgood, 42 Neb., 450.) Tbe judgment of tbe district court is therefore Affirmed. Harrison, J., not sitting.