
    Lucinda Monell, appellee, v. H. B. Irey, County Treasurer, et al., appellants.
    Filed February 18, 1896.
    No. 6074.
    Tax Deeds: Injunction to Restrain Issuance: Evidence. Where the plaintiff’s right-to have enjoined the issuance of a treasurer’s deed depends upon his affirmatively show- ■ ing that the sale, pursuant to which such deed is to he issued, was made in violation of an injunction prohibiting it, there must, to entitle to the relief prayed, he evidence of the very essential fact that at the time of the tax sale such decree was in existence.
    Appeal from the district court of Douglas, county. Heard below before Hopewell, J.
    
      Balliet & Points, for appellants.
    
      Lake, Hamilton & Maxwell, contra.
    
   Ry-an, C.

Lucinda Monell, the appellee, brought this action in the district court of Douglas county July 13,1892, alleging in her petition that she had been the owner of lot 6, block 106, of the city of Omaha for ten years before the commencement of this action, and by virtue of her continued ownership she prayed the relief which afterwards was granted. As her grounds for this relief she alleged that on July 16, 1890, Adam Snyder, the then treasurer of Douglas county, had offered the said lot for sale and had made a pretended sale thereof to the defendants Grant & Grant for an alleged- unpaid and special assessment levied and assessed against the said premises by the said city of Omaha in the year 1879 for curbing and guttering Douglas street,, in the said city, and had delivered to said Grants a certificate oí sale therefor, •and that thereupon the said Grants on the same day had paid to the said county treasurer purported county taxes assessed against said premises unpaid and delinquent for the years 1866 and 1867, and on the 22d of July, 1890, had paid to said county treasurer a purported city tax assessed against said premises unpaid and delinquent for the year 1864. It was further alleged in the petition that at the time the aforesaid paving and guttering tax was levied and assessed in 1879, Gilbert C. Monell was the owner of the aforesaid lot, and that about May 20,1881, said Gilbert 0. Monell brought his action in the district court of Douglas county against W. F. Heins, treasurer of said county, to procure the said paving and guttering tax to be decreed void and to have the collection and enforcement of the same perpetually enjoined, and that in February, 1886, this relief was granted, from which it resulted that a tax sale to- Grant & Grant was utterly void and vested said Grants with no title, claim, lien, or interest in said lot 6, block 106, of the city of Omaha. To defeat the right of Grant & Grant to be subrogated to the rights of the county with respect to taxes by them paid after their purchase of said lot, it was alleged that when these taxes were assessed the lot was the property of the Second Presbyterian Church of the city of Omaha and was then used for church purposes. The prayer of the petition in the case now under consideration was that the county treasurer of Douglas county be enjoined from issuing a tax deed to Grant & Grant upon their certificate of purchase, and that the cloud thereby and by the subsequently paid taxes be removed, and for general ■equitable relief. Tbe defendants admitted in ■tbeir answer that the county treasurer bad been •correctly named in tbe petition; that the lot in question bad been sold to Grant & Grant; that said firm of Grant & Grant bad paid taxes, as in tbe petition bad been alleged, and that notice of tbe application for tbe treasurer’s deed on said purchase bad been given as plaintiff in her petition bad alleged. There was in effect a denial •of tbe allegations of tbe petition not above admitted.

In tbe decree from which this appeal has been prosecuted there was tbe following language: “It being unnecessary, in tbe court’s opinion, to a proper decision of. tbe case, no finding is made on tbe question as to said premises being cbnrcb property and exempt from taxation during tbe years 1864, 1866, and 1867, and tbe court does not •determine tbe same.” In respect to appellants’ rights as to all tbe taxes outside tbe paving and guttering tax we shall follow tbe line pursued by tbe district court, and shall consider tbe case as though tbe only rights involved were such as depend directly upon the paving and guttering tax.

In tbe course of tbe trial in tbe district court there was by tbe appellants offered in evidence tbe county treasurer’s certificate showing tbe sale •of tbe aforesaid lot on July 16, 1890, to Grant & Grant, for $422.51, tbe amount of a paving and guttering tax. By tbe appellee there was offered In evidence tbe following record:

“Gilbert C. Monell v. William F. Heins et al.
“Now come tbe parties herein by tbeir attorneys, and thereupon this cause came on for hearing on the pleadings and evidence and was submitted to the court, on consideration whereof, and. all parties consenting thereto, the court do find on. the issue joined for the plaintiff and that the plaintiff is entitled to the relief prayed for. It is. therefore considered and decreed that the defendants be, and they hereby are, perpetually and forever enjoined from, in any manner, collecting the curb and gutter tax levied on lot 6, block 106, ini the city of Omaha, Douglas County, Nebraska. It is further considered that the plaintiff recover from the defendant his costs herein expended* taxed at $-.”

There is neither in this decree, nor in any evidence offered in connection with it, any indication of its date. As this action, upon the theory of the appellee, was only maintainable upon the theory that the enforcement of the paving and guttering: tax having been enjoined, the said tax no more justified a sale of the lot than though such paving: and guttering tax had never existed, it devolved: upon the party relying upon the decree to show that the sale called in question had been made* notwithstanding the fact that this decree was. then in existence. No presumption of the performance by the county treasurer of his duty can. aid us in this matter, for the presumption that he would not have made a sale in violation of the decree is as strong as any other that can be invoked. It may be, as alleged in the petition, that this decree was entered on May, 1886, but this* with other averments, was put in issue by the answer, and, as has already been stated, there was-no showing by proofs what in fact was the date of this decree. There was in evidence, as we have seen, a certificate showing the. sale for the satisfaction of this paving and guttering tax, and this was not met by proof that at the time of this sale there was in existence a decree that forbade it, and against its validity no other defense has been pleaded. The judgment of the district court is therefore

Reversed.

Irvine, C., not sitting.  