State v. Several Parcels of Land ( 1906 )

Ames, C.

George M. Grant, as tbe bolder of a mortgage on a certain tract of land in tbe city of Ornaba, procured a decree of foreclosure and sale of tbe same, and became tbe purchaser of it at tbe sale which was consummated by confirmation and deed according to tbe usual course of procedure in such cases. Tbe appraisers appointed by the sheriff found tbe gross value of tbe property to be $5,280, from which they deducted $1,024 on account of tbe apparent tax liens thereon as shown by treasurer’s certificates procured by tbe sheriff pursuant to tbe statute, and tbe amount of tbe bid was $4,000 or $250 less than tbe “net” value of the land as shown by the appraisal, and $480 more than two-thirds of the amount of tbe gross appraisal. This is an action in tbe name of tbe state to foreclose tbe supposed tax liens pursuant to tbe so-called “Scavenger” act of tbe last legislature. A grantee of the purchaser at tbe foreclosure sale was made defendant, and answered, denying tbe validity of the alleged taxes on account of which tbe foreclosure is sought; and it was stipulated before the trial that said supposed taxes were and are, in fact, wholly void, but the district court nevertheless entered a decree of foreclosure and sale, from which the defendant appeals.

This court has held so many times and so frequently that “a purchase of property at a judicial sale at which certain liens have been duly certified and deducted in the appraisement is a purchase subject to such liens, and the purchaser will be estopped from questioning their validity in subsequent proceedings, although he may have paid more than two-thirds of the gross appraisement” (Battelle v. McIntosh, 62 Neb. 647), that a reiteration of the decision now can serve no useful purpose. See, also, Omaha Loan & Trust Co. v. City of Omaha, 71 Neb. 781. Nor is any reason given why the rule thus settled should be. inapplicable to cases in which the purchaser is also the judgment plaintiff, because the estoppel operates upon him in his character as purchaser only, and that character is not affected by the other mentioned fact when it exists. But it is argued that the estoppel is waived or discharged by the admission by stipulation that, as a matter of fact, the alleged taxes were and are void. But this stipulation, we think, amounts to no more than a waiver of the production of evidence to prove that fact. It is the fact itself that is rendered by the estoppel incompetent to be received in evidence or considered by the court, and such incompetency the stipulation does not purport to waive or remove, nor, evidently, was it within the intent of the parties that it should do so.

We are of opinion, therefore, that the judgment of the district court is. right and recommend that it be affirmed.

Oldham and Eppebson, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be

Affiemed.