McCann v. Merriam

11 Neb. 241

• Court: Nebraska Supreme Court
• Decided: January 15, 1881
• Status: Published

Opinion

Lake, J.

It was proved on the trial, and the fact is conceded by counsel for the appellant, that in the amount for which the land was sold by the treasurer there was included a road tax for the year 1876, levied without regard to valuation and at the arbitrary rate of four dollars per quarter section. As we have heretofore held, such a levy, under the constitution of 1875, is void. Dundy v. Richardson County, 8 Neb., 508. It is contended, however, on this point, that notwithstanding the inclusion of this void tax, inasmuch as the deed was made under and in pursuance of the revenue act of 1879, its force is not to be at all impaired on that ground.

This, we think, is claiming more for this act than is warranted by its terms. In sec. 129 the six preceding sections are specially mentioned as being applicable to sales theretofore made. Comp. Stat., 424. This special reference to these six sections precludes the idea that other portions of the act should have such application. This, without more, would leave the force of the tax deed and validity of the sale to be tested by the act in force when the sale was made — that of Feb. 15th, 1869. Whatever the rule may be under the present act, we have no doubt that under that of 1869 such total invalidity of the tax, or a portion thereof, may be shown to avoid the deed, and thus defeat the title of the purchase%at tax sale. We see nothing in the record which calls for any change in the judgment, and it is affirmed.

Judgment aeeirmed.