Haller v. Blaco

10 Neb. 36

• Court: Nebraska Supreme Court
• Decided: January 15, 1880
• Status: Published

Opinions

Lake, J.

This is a petition in error from Washington county. The only errors complained of by the plaintiff’s counsel in their brief are the exclusion, first, of the tax deed, and secondly, of the treasurer’s certificate of tax sale, offered in evidence to prove title to the land in controversy.

As to the certificate, the record before us fails to show any ruling of the court on the objection interposed to it by the defendant’s counsel; nor is it shown whether the instrument was actually received in evidence or not. Eor these reasons no question concerning this certificate is presented for our decision. Where the record is silent as to the ruling of the court below on an objection to testimony offered, no foundation is laid for a review of that ruling here, whatever it may have been. In such case it is impossible to say that an error was committed, while the presumption is there was not.

Nor do we perceive any error in the ruling of the district judge upon the objection to the deed. The statute prescribes a particular form for a tax deed, which “ shall be, as far as practicable,” followed by the treasurer in making the conveyance. It will not be questioned that in order to deprive the owner of land of his title thereto under tax proceedings it must be shown that every material pre-requisite of the statute has been strictly complied with. In this state the legislature have seen fit to require that most of the essential steps to a valid tax sale of land shall be recited in the treasurer’s deed, which is made prima facie evidence that they were taken. Among these essential steps that must be recited in the deed is the place of sale, which must have been either “ at the court house or place of holding courts in his county, or at the treasurer’s office.” The language of the statutory form of deed being “ at the door of the courthouse,” but as this is to be followed only so “ far as practicable,” and inasmuch as the sale might have been made elsewhere, the fact on this point concerning it must be stated. And this statement of the place of sale is not matter of form merely, it is of the substance of a valid deed, and the courts are no more at liberty to disregard it than they are any one, or all even, of the numerous other recitals which the statute requires. Lain v. Cook, 15 Wis., 446. Harrington v. City of Worcester, 6 Allen, 576. Smith et als. v. Hileman, 1 Scam., 330. The deed was rightly excluded, and the judgment of the court below must be affirmed.

Aeeirmed.

Cobb, J., concurs.