Broquet v. Warner

Tax Deed, Valid Between Holder and Mortgagee. Where the husband of a oo-heiress purchases a tax title upon the land of the heirs, and such husband and wife are not in the possession of such land, held, that the tax title is not void as between such tax-title holder and the mortgagee claiming under a mortgage given by the father of such heirs.

Error from Norton District Court. Action brought by Frederich W. Warner, as administrator of the estate of John S. Willard, deceased, against Mary Blue, Philip Blue, Mary Broquet, Ernest Broquet, Sarah L. Croco, William H. Croco, and George W. Burton, upon a promissory note, and to foreclose a mortgage to secure the same, executed by James and Mary Blue to George W. Burton, and assigned by Burton to John S. Willard. Afterward Willard died, and Frederick W. Warner was duly appointed as administrator. No defense was made by any of the defendants, except Ernest Broquet — he being the husband of Mary Broquet, who was a daughter and heir-at-law of James Blue. The petition contains the following allegations as a cause of action against Ernest Broquet: “That on the first Tuesday of September, 1883, the above-described mortgaged lands were offered for sale in said county at a delinquent tax sale for the satisfaction of $16.97, the whole amount of taxes then due on said land, and the same were bid -for and stricken off to defendant Ernest Broquet, in name of E. Broquet; and that on the 16th day of September, 1886, in pursuance of said sale, and for a consideration of $45.89 taxes on said land, paid by said Broquet into the treasury of Norton county, said county did then make and deliver to said Broquet a certain tax deed, a copy of which is herewith filed, marked ‘ Exhibit N,’ and made a part of this complaint, by authority, force and effect of which said Broquet is claiming title to said land adverse to and exclusive of the right, title and interest plaintiff has under and by virtue of his said mortgage; that at the time of said sale to said Broquet, and the execution and delivering of said tax deed to him, he was the husband of said Mary Broquet, who had an interest in said land as the heir of James Blue, which gave him an interest in said land, making it his duty to pay said taxes, and forbidding of his acquiring title thereto as such purchaser at said delinquent tax sale and by virtue of said tax deed.” To this petition Broquet filed a demurrer, setting up, first, that the petition did not state facts sufficient to constitute a cause of action; and second, that several causes of action are improperly joined. At the April term, 1887, this demurrer was overruled by the court, and judgment was rendered for the plaintiff, defendant in error, foreclosing the mortgage and setting aside and canceling the tax deed held by Broquet, plaintiff in error. Broquet brings the case here.