Curtis v. Giff

possession, which requires the adverse possessor to have been
in adverse possession for a statutory period of 10 years. See
Madson v. TBT Ltd. Liability Co., 12 Neb. App. 773, 686
N.W.2d 85 (2004). Under the majority’s application of col-
lateral estoppel, a party who filed his adverse possession claim
after only 9 years and was unsuccessful would have to start
all over on his 10 years and wait until he had adversely pos-
sessed for a total of 19 years before again requesting title to
the land.
Kenneth previously sought a modification of his alimony
obligation and was unsuccessful. In the present action, the
question should be whether the present circumstances are sub-
stantially and materially different than they were at the time the
present alimony obligation was entered. Such is consistent with
the proposition that we should look to the original decree or
prior modification as a basis for comparing the present circum-
stances, such is not inconsistent with existing Nebraska case
law, and such is a more defensible and tenable precedent for
future cases. Accordingly, I dissent from the majority’s conclu-
sion in this case.
C harles l. C urtis and sandra s. C urtis , husband and wife ,
appellees , v . M egan giff (Marital status unknown ),
defendant and third - party plaintiff , appellant ,
and C hase hoMe finanCe , llC, third - party
defendant , appellee .
757 N.W.2d 139
Filed October 28, 2008. 	No. A-07-870.
1. Quiet Title: Equity. An action to quiet title is one in equity.
2. Equity: Appeal and Error. In appeals of equitable actions, the appellate court
tries factual questions de novo on the record to reach a conclusion independent of
the trial court.
3. Summary Judgment: Final Orders: Appeal and Error. Although the denial of
a motion for summary judgment, standing alone, is not a final, appealable order,
when adverse parties have each moved for summary judgment and the trial court
has sustained one of the motions, the reviewing court obtains jurisdiction over
both motions and may determine the controversy which is the subject of those
cUrtIS v. gIFF 	149
cite as 17 Neb. App. 149
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

motions or make an order specifying the facts which appear without substantial
controversy and direct further proceedings as it deems just.
4. Foreclosure: Taxes: Liens: Parties: Notice. A decree of foreclosure of a tax lien
is of no effect as against the persons who were at the time in actual possession of
the land and who were not made parties defendant in the action and had no notice
or knowledge thereof.
5. Collateral Attack: Quiet Title: Sales: Service of Process: Notice: Jurisdiction.
A collateral attack upon an order confirming a sale by way of a quiet title action
is allowed where, due to improper service and lack of actual notice, a court fails
to obtain personal jurisdiction over the party in possession of or owning the prop-
erty being sold.
6. Collateral Attack: Tax Sale: Service of Process: Jurisdiction. Absent service
on a party in possession of property being sold for foreclosure of a tax lien, the
trial court obtains no jurisdiction over the person and the order is totally void and
may be subject to collateral attack.
7. Property: Words and Phrases. Actual possession is defined as actual, open,
visible possession or occupancy in fact, exactly that and nothing less, as distin-
guished from constructive possession.
8. Tax Sale: Service of Process: Deeds: Presumptions: Statutes. there is no pre-
sumption of valid service contained in the statutes governing sheriff’s deeds that
follow a tax foreclosure sale.
9. Judgments: Title. A void judgment is not binding upon the person against whom
it is rendered, gives no new rights or better position to a person in whose favor it
professes to be, and cannot be a source of title.
10. Judgments: Jurisdiction. A void judgment may be entirely disregarded upon
having its jurisdictional infirmity exposed.
11. Judgments: Jurisdiction: Equity: Notice. Proceedings in equity are peculiarly
appropriate for the exposure of jurisdictional infirmity, and after full opportunity
has been given to those who seek to sustain as well as to those who seek to avoid
the judgment, if it satisfactorily appears that the defendant was not summoned,
and had no notice of the suit, a sufficient excuse is shown for his neglect to
defend, and equity will not allow the judgment, if unjust, to be used against him,
no matter what jurisdictional recitals it contains.
12. Judgments. It is not necessary to take any steps to have a void judgment
reversed, vacated, or set aside.
13. Appeal and Error. to be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the brief of the party
asserting the error.
Appeal from the District court for Douglas county: peter
C. bataillon, Judge. Affirmed.
Aimee J. Haley, of Fullenkamp, Doyle & Jobeun, for
appellant.
Douglas S. Lash, of Brown & Brown, P.c., L.L.O., for
appellees charles L. curtis and Sandra S. curtis.
150 	17 NeBrASKA APPeLLAte rePOrtS

tyler P. McLeod, of Abrahams, Kaslow & cashman, L.L.P.,
and timothy M. Kelley, of Leonard, Street & Deinard, P.A., for
appellee chase Home Finance.
irwin , sievers, and C arlson, Judges.
sievers, Judge.
charles L. curtis and Sandra S. curtis brought an action
in the district court for Douglas county, Nebraska, to quiet
title to their backyard, which, unbeknownst to them, was in
Nebraska rather than Iowa, where their house was located. the
district court sustained their motion for summary judgment
and quieted title in them. Megan giff, who claimed to own the
disputed property pursuant to a sheriff’s deed after the property
was sold in tax foreclosure proceedings in 2002, appeals.
FActUAL AND PrOceDUrAL BAcKgrOUND
the curtises purchased property located on Sand Point
Drive in carter Lake, Iowa, on November 21, 1994, from
chase Home Finance, LLc (chase), which acquired the prop-
erty from the prior owner of the property, troy & Nichols,
Inc. the property is actually made up of land in Pottawattamie
county, Iowa, which contains the house and front yard, and
Douglas county, Nebraska, which contains the backyard and
lakefront. the curtises received a deed to the Iowa parcel
from chase on December 5, 1994, but did not receive a deed
to the Nebraska parcel at that time. the curtises are the legal
owners of the Iowa parcel, and that parcel is not in dispute.
the Nebraska parcel is in dispute and has the following
legal description:
the east eighty Feet (80′) of the West two Hundred
thirty-Five 	Feet 	(235′) 	of 	the 	South 	two 	Hundred
Feet (200′) of tax Lot 16 in the Northwest Quarter
(NW 1⁄4) of the Southwest Quarter (SW 1⁄4) of the
Northwest Quarter (NW 1⁄4) of Section 1, township 15,
range 13 east of the 6th P.M., in the city of Omaha,
Douglas county, Nebraska.
the Nebraska parcel lies directly north of the Iowa parcel and
borders carter Lake. the house and garage are located on the
Iowa parcel, and a portion of the backyard, a boathouse, and
cUrtIS v. gIFF 	151
cite as 17 Neb. App. 149

a seawall are on the Nebraska parcel. there is a chain link
fence on the north, east, and west sides of the backyard. this
fence is on both the Iowa and Nebraska parcels. From 1994
until the present, the curtises have maintained both the Iowa
and Nebraska parcels and made repairs to the improvements
on each.
At the time the curtises purchased the Sand Point Drive
property, it was under an Iowa listing agreement between
chase and Steve Amos, a real estate broker in Omaha. the
listing agreement between chase and Amos, the uniform
purchase agreement signed by the curtises, and all other
forms associated with the curtises’ purchase of the property
describe the property by the street address only. None of these
forms include a legal description. Amos and the curtises were
unaware that the Nebraska-Iowa state line bisected the prop-
erty at the time of the curtises’ purchase or that any part of
the property was located in Nebraska. In fact, the property
was described as “lakefront” property in carter Lake, Iowa,
in the uniform purchase agreement and on other forms asso-
ciated with the curtises’ purchase. Property taxes paid by the
curtises to Pottawattamie county included the improvements
on the Iowa parcel and the boathouse. the curtises did not pay
any property taxes on the Nebraska parcel to Douglas county
before 2005.
the property on Sand Point Drive was conveyed to troy &
Nichols, now chase, from the Secretary of Veterans Affairs
in 1993. At that time, troy & Nichols received two quitclaim
deeds, one for each parcel. the Secretary of Veterans Affairs
foreclosed on the property in 1992 and had received a special
warranty deed for each parcel. Likewise, prior owners of the
property received two deeds when they purchased the prop-
erty in 1977 and 1986, respectively. the curtises, however,
received a deed to only the Iowa parcel upon their purchase
in 1994.
An attorney involved in the transfer from the Secretary of
Veterans Affairs to troy & Nichols stated in her affidavit that
the property, even though there were two deeds, was gener-
ally conveyed as one parcel. She also stated that it is prudent
152 	17 NeBrASKA APPeLLAte rePOrtS

to consider the two parcels together because the Nebraska
parcel can be accessed only through the Iowa parcel or from
carter Lake.
Sometime in 1999 or 2000, Sandra learned from a neighbor
that part of the property may be in Nebraska, because a former
owner had paid some Nebraska property taxes. Sandra con-
tacted the Douglas county register of deeds and the assessor,
but was unable to obtain any information. Sandra stated in her
affidavit that she and charles were never visited by Douglas
county assessors, but were visited by Pottawattamie county
assessors at least three times during the years they owned
the property.
Apparently no one had been paying the property taxes
on the Nebraska parcel between 1993 and 1998, because in
November 2001, Douglas county instituted proceedings for a
tax foreclosure sale. Notice of the tax foreclosure was mailed
in December 2001 to troy & Nichols, which was listed as
the owner of record at that time. In addition, notice of the
tax foreclosure sale was published in an Omaha legal news-
paper for 3 consecutive weeks in December 2001 and again in
February and March 2002. the notice was published a total of
seven times.
the tax sale occurred on March 20, 2002, and giff’s father
purchased the Nebraska parcel for $335.64 as an investment
property for giff, who was under the age of majority at the
time of the sale. Notice of a hearing to confirm the sale was
sent to troy & Nichols. the sale was confirmed by the district
court for Douglas county on May 13, 2004. Subsequently, a
sheriff’s deed was issued for the parcel on June 17, and giff
recorded the sheriff’s deed on June 28. giff’s father paid the
property taxes due on the Nebraska parcel from 1999 to 2004
on giff’s behalf.
On January 31, 2005, giff’s father sent a letter to the
owner of a commercial marina next to the curtises, asking
him whether he was interested in purchasing the Nebraska
parcel. the owner of the marina showed the letter to Sandra,
who then called giff’s father. through subsequent telephone
calls between Sandra and giff’s father, giff’s father offered
cUrtIS v. gIFF 	153
cite as 17 Neb. App. 149

to sell the Nebraska parcel to Sandra for $20,000, an offer
Sandra refused. Sandra then contacted Amos, the real estate
broker for the original sale to the curtises, and Amos then
contacted chase. Many e-mails and faxes were sent between
Amos, chase, and the curtises’ attorney. the curtises’ attorney
and Amos provided documentation to chase, alleging that the
curtises needed a deed to the Nebraska parcel because that
deed was inadvertently left out in the 1994 sale. the curtises’
attorney and Amos represented that a deed would address some
problems the curtises were having in regard to a holder of tax
title. Pursuant to their request, chase issued a quitclaim deed
conveying the Nebraska parcel to the curtises on November
18, 2005. this deed was recorded on November 21. Also on
November 21, the curtises filed a real estate transfer statement
to change the address to which Douglas county property tax
statements were sent. From 2005, the curtises have paid the
property taxes on the Nebraska parcel.
On January 24, 2006, the curtises filed suit against giff
to quiet title to the Nebraska parcel. the curtises allege that
they had adversely possessed the Nebraska parcel; that the tax
foreclosure sale and subsequent sheriff’s deed are not bind-
ing upon them, because they were not served with notice of
the tax foreclosure action; and that they intended to purchase
the Nebraska parcel along with the Iowa parcel in 1994. giff
counterclaimed to quiet title against the curtises, to eject the
curtises from the Nebraska parcel, and for slander of title.
giff also filed suit against chase to quiet title and for slander
of title. each party filed a motion for summary judgment.
Finding no genuine issues of material fact, the district court
for Douglas county sustained the summary judgment motions
of the curtises and chase and denied that of giff. the court
further found that the tax foreclosure sale was void ab initio
because the curtises did not receive notice of the sale and
were entitled to such notice because they were in possession of
the property; that giff had no property interest in the Nebraska
parcel because the sheriff’s deed was void ab initio and that
therefore she could not maintain quiet title, ejectment, or
slander of title claims; and that because giff has no property
interest, chase is entitled to judgment as a matter of law. the
154 	17 NeBrASKA APPeLLAte rePOrtS

curtises then made a motion for default judgment quieting
their title in the Nebraska parcel, which motion was granted by
the district court. giff timely appeals this ruling.
ASSIgNMeNtS OF errOr
giff’s assignments of error, consolidated and renumbered,
are as follows: (1) the district court erred in finding that the
curtises were entitled to judgment as a matter of law because
they did not receive actual notice of the tax foreclosure sale
and were entitled to such notice because of their possession
of the Nebraska parcel, making the tax foreclosure sale and
sheriff’s deed void ab initio; (2) the district court erred in find-
ing that chase was entitled to judgment as a matter of law; (3)
the district court erred in failing to find that giff was entitled
to a judgment as a matter of law; and (4) the district court
erred in failing to find the curtises’ claims were barred by
equitable defenses.
StANDArD OF reVIeW
[1,2] An action to quiet title is one in equity. See Rush Creek
Land & Live Stock Co. v. Chain, 255 Neb. 347, 586 N.W.2d
284 (1998). In appeals of equitable actions, the appellate court
tries factual questions de novo on the record to reach a conclu-
sion independent of the trial court. See id.
[3] Although the denial of a motion for summary judgment,
standing alone, is not a final, appealable order, when adverse
parties have each moved for summary judgment and the trial
court has sustained one of the motions, the reviewing court
obtains jurisdiction over both motions and may determine the
controversy which is the subject of those motions or make an
order specifying the facts which appear without substantial con-
troversy and direct further proceedings as it deems just. Hogan
v. Garden County, 264 Neb. 115, 646 N.W.2d 257 (2002).
ANALYSIS
[4-6] A decree of foreclosure of a tax lien is of no effect as
against the persons who were at the time in actual possession
of the land and who were not made parties defendant in the
action and had no notice or knowledge thereof. See Harris v.
Heeter, 137 Neb. 905, 291 N.W. 721 (1940). See, also, Winkle
cUrtIS v. gIFF 	155
cite as 17 Neb. App. 149

v. Mitera, 195 Neb. 821, 241 N.W.2d 329 (1976); Durfee v.
Keiffer, 168 Neb. 272, 95 N.W.2d 618 (1959). “[A] collateral
attack upon an order confirming a sale by way of a quiet title
action is allowed where, due to improper service and lack of
actual notice, a court fails to obtain personal jurisdiction over
the party in possession of or owning the property being sold.”
Pilot Investment Group v. Hofarth, 250 Neb. 475, 482-83, 550
N.W.2d 27, 33 (1996) (emphasis omitted). Absent service on a
party in possession, the trial court obtains no jurisdiction over
the person and the order is totally void and may be subject to
collateral attack. Brown v. Glebe, 213 Neb. 318, 328 N.W.2d
786 (1983). See Sileven v. Tesch, 212 Neb. 880, 326 N.W.2d
850 (1982).
giff argues that under Nebraska law, one must have title
to the disputed property to challenge a tax foreclosure sale,
and that because the curtises did not have title via a deed or
adverse possession at the time of the tax foreclosure in 2002,
the curtises cannot challenge the tax foreclosure sale whereby
giff purchased the Nebraska parcel. this is an incorrect state-
ment of the law. giff is correct in her assertion that the curtises
were not the record owners of the property in 2002, because
they clearly had not received a deed for the Nebraska parcel.
Similarly, giff is correct in claiming the curtises had not
acquired title through adverse possession in 2002. At that time,
the curtises had been on the property for only slightly more
than 7 years, not 10 years as required. See, Neb. rev. Stat.
§ 25-202 (reissue 1995); Wanha v. Long, 255 Neb. 849, 587
N.W.2d 531 (1998) (stating that party claiming title through
adverse possession must prove by preponderance of evidence
that adverse possessor has been in (1) actual, (2) continuous,
(3) exclusive, (4) notorious, and (5) adverse possession under
claim of ownership for statutory period of 10 years). the
curtises also cannot tack their predecessors in interest’s time
of possession to their own, because troy & Nichols did not
possess the property at any point. the property had been
vacant for 2 years prior to the curtises’ purchase. See Bryan v.
Reifschneider, 181 Neb. 787, 150 N.W.2d 900 (1967) (stating
that tacking for purposes of adverse possession requires privity
of possession).
156 	17 NeBrASKA APPeLLAte rePOrtS

Nonetheless, the curtises were still entitled to notice of the
tax sale, because possession is sufficient to be entitled to notice
of tax foreclosure proceedings. In Harris, supra, title based on
adverse possession had not yet ripened when foreclosure pro-
ceedings were instituted. the Nebraska Supreme court focused
solely on actual possession, not title, at the time of the tax
sale and held that possession was sufficient to be entitled to
notice. giff also argues that Harris, supra, and Durfee, supra,
are inconsistent in their requirements. We disagree. Both cases
apply the same rule, but, because of varying facts, come to dif-
ferent results on the issue of actual possession. the key inquiry
is whether the curtises were in possession in 2002 when the
tax foreclosure sale took place, thereby entitling them to actual
notice of the proceedings. therefore, we turn now to whether
the curtises were in possession of the Nebraska parcel in 2002
and whether the curtises received or had notice of the tax fore-
closure proceedings.
[7] Actual possession, defined by the Nebraska Supreme
court, means “‘actual, open, visible possession or occupancy
in fact, exactly that and nothing less, as distinguished from
constructive possession.’” Durfee v. Keiffer, 168 Neb. 272,
284, 95 N.W.2d 618, 626 (1959). giff argues that the curtises
were not in possession of the Nebraska parcel. giff claims that
the curtises are nonresident trespassers because they did not
occupy, improve, or reside on the Nebraska parcel. However,
giff adduced no evidence to support this argument. giff’s
father, in an affidavit, stated that he entered the property on one
undefined occasion and was not excluded and that he observed
a fence on the state line, which, even if true, hardly conclu-
sively disproves possession.
the curtises, on the other hand, adduced evidence that they
were in possession at the time of the tax sale. Pictures offered
by the curtises of the Nebraska and Iowa parcels date from
2000 and 2001. remembering that the two parcels form a sin-
gle residential lakefront lot, irrespective of the legal nuances,
these pictures show that the properties were being maintained
and that a chain link fence is common to both parcels. From
these pictures, the fence does not appear to be on the state line,
but, rather, on the edges of the yard. the northern side of the
cUrtIS v. gIFF 	157
cite as 17 Neb. App. 149

fence appears very near the water line of carter Lake. Sandra
stated in her affidavit that she and charles
have also occupied, kept, maintained and improved the
property north of the house all the way to the lake, includ-
ing putting a new roof, decking, and door panels on the
boat house, repairing the boat lift, repairing and rebuild-
ing the railroad tie retaining wall on the west side of the
property which extends into the lake.
this is certainly actual possession. the way that the backyard is
fenced and the repairs done to improvements on the Nebraska
parcel clearly make the curtises’ possession open and visible
to any reasonable person as well. We therefore find the curtises
were in actual possession of the Nebraska parcel at the time of
the tax foreclosure sale.
[8] We now turn to whether the curtises had notice of the
tax foreclosure proceedings. the law is well settled that there
is no presumption of valid service contained in the statutes
governing sheriff’s deeds that follow a tax foreclosure sale.
Pilot Investment Group v. Hofarth, 250 Neb. 475, 550 N.W.2d
27 (1996); Brown v. Glebe, 213 Neb. 318, 328 N.W.2d 786
(1983). See Neb. rev. Stat. §§ 77-1901 through 77-1941
(reissue 2003). giff did not introduce any evidence to dispute
in any way the evidence adduced by the curtises that they did
not have actual notice.
giff argues that constructive notice by publication is suf-
ficient because the curtises were nonresidents of the State
of Nebraska and, therefore, could not have been served in
Nebraska. giff cites Durfee, supra, as support for this conten-
tion. However, in that case, there was little evidence of pos-
session, and the person claiming entitlement to notice was a
landlord who was found to have only constructive possession.
this case can easily be distinguished from Durfee, because the
Nebraska parcel here is directly adjacent to the curtises’ house
and in reality becomes part of where they live. there is clear
evidence that anyone, upon inquiry, could have discovered the
curtises had an interest in the Nebraska parcel because of the
close proximity of their house and the appearance of the yard
and fence. Here, service could have been made in Nebraska;
158 	17 NeBrASKA APPeLLAte rePOrtS

the curtises were clearly in possession of their backyard,
which is in Nebraska.
[9] Because the curtises were in actual possession of the
Nebraska parcel, they were entitled to actual notice of the tax
foreclosure proceedings. Because they did not receive notice,
the tax sale and subsequent sheriff’s deed to giff are void. See,
Brown v. Glebe, 213 Neb. 318, 328 N.W.2d 786 (1983); Sileven
v. Tesch, 212 Neb. 880, 326 N.W.2d 850 (1982). As a result,
giff never acquired valid title to the Nebraska parcel. A void
judgment is not binding upon the person against whom it is
rendered, gives no new rights or better position to a person in
whose favor it professes to be, and cannot be a source of title.
See Hassett v. Durbin, 132 Neb. 315, 271 N.W. 867 (1937).
As such, giff cannot maintain an action for quiet title or eject-
ment or slander of title against the curtises or chase, and such
parties are entitled to judgment as a matter of law. See, Neb.
rev. Stat. § 25-2124 (cum. Supp. 2006); K & K Farming v.
Federal Intermediate Credit Bank, 237 Neb. 846, 468 N.W.2d
99 (1991) (stating that to maintain ejectment action, plaintiff
must show legal interest in property, entitlement to possession
therein, and that defendant unlawfully keeps plaintiff out of
possession). See, also, Norton v. Kanouff, 165 Neb. 435, 86
N.W.2d 72 (1957) (stating action for slander of title is based
upon false and malicious statement, oral or written, made in
disparagement of person’s title to real or personal property,
resulting in special damage).
[10-12] giff further attacks the method in which the curtises
void the tax sale by arguing that the curtises should have
reopened the judgment and defended the foreclosure action
pursuant to Neb. rev. Stat. § 25-525 (cum. Supp. 2006) or
pursuant to an action for redemption. However, this argument
has no merit. See, Thomas v. Flynn, 169 Neb. 458, 100 N.W.2d
37 (1959) (stating that owner or occupant may redeem from
tax sale prior to issuance of valid tax deed); Hassett v. Durbin,
supra (stating § 25-525 has no reference to void judgment).
An action to quiet title in equity is an appropriate method of
attacking a tax foreclosure sale.
cUrtIS v. gIFF 	159
cite as 17 Neb. App. 149

A void judgment may be entirely disregarded upon
having its jurisdictional infirmity exposed. Proceedings
in equity are peculiarly appropriate for the exposure of
this infirmity, and after full opportunity has been given
to those who seek to sustain as well as to those who seek
to avoid the judgment, if it satisfactorily appears that the
defendant was not summoned, and had no notice of the
suit, a sufficient excuse is shown for his neglect to defend,
and equity will not allow the judgment, if unjust, to be
used against him, no matter what jurisdictional recitals it
contains. 3 Freeman, Judgments (5th ed.) sec. 1228.
Hassett v. Durbin, 132 Neb. at 318, 271 N.W. at 869. It is not
necessary to take any steps to have a void judgment reversed,
vacated, or set aside. Id.
giff also argues that the curtises are barred from asserting
their claims because they failed to meet the requirements of
Neb. rev. Stat. § 77-1844 (reissue 2003). However, this argu-
ment is also without merit. See Cornell v. Maverick Loan &
Trust Co., 95 Neb. 9, 144 N.W. 1072 (1914) (stating this section
does not apply if taxes not due and owing on date of suit).
[13] giff’s remaining assignment of error relates to the
applicability of equitable defenses. giff claims the equitable
doctrines of unclean hands, laches, waiver, or collateral estop-
pel bar the curtises’ claims. However, to be considered by
an appellate court, an alleged error must be both specifically
assigned and specifically argued in the brief of the party assert-
ing the error. Malchow v. Doyle, 275 Neb. 530, 748 N.W.2d 28
(2008). giff did not specifically argue any of these defenses,
and they will not be considered here.
cONcLUSION
the district court properly granted the curtises’ motion to
quiet title in them because they had actual possession of the
Nebraska parcel and did not receive notice of the tax foreclosure
proceedings. the quitclaim deed, recorded on November 21,
2005, effectively transferred title from chase to the curtises;
giff’s sheriff’s deed is void and unenforceable, and such cloud
upon the curtises’ title should be, and is hereby, removed.
affirMed .
160 	17 NeBrASKA APPeLLAte rePOrtS