Yeatman v. Yeatman. We think copied above is the final judgment in the case. differently, however. The allowance of a claim against an estate is a judicial act and has all the force and effect of a judgment, and will be conclusive unless reversed or vacated in some of the modes provided by law. (Shoemaker v. Brown, 10 Kan., 383.) In this case it is said: "All their allowances of demands against the estate, all their settlements with administrators, indeed all their official acts requiring the exercise of judgment and discretion, are, in their nature, judicial determinations, and are binding upon all the property of the estate, and upon any interest in such property that any person may have as heir, devisee, or legatee. The settlements with administrators especially come within the jurisdiction." In Jameson v. Barber, 56 Wis., 630, the same ruling was made. To the same effect, Estate of Schroeder, 46 Cal., 319; Beckett v. Selover, 7 Id., 239; Deck's Estate v. Gherke, 6 Id., 666; Tutt v. Boyer, 51 Mo., 425; Jones v. Brinker, 20 Id., 87; Kennerly v. Shepley, 15 Id., 640; Cossitt v. Biscoe, 12 Ark., 97; Swann v. House, 50 Tex., 650 0; Campbell v. Strong, Hempst. [U. S.], 265. In two states it appears to be held that the allowance of an account is not final and conclusive. (State v. Bowen, 45 Miss., 347; Levering v. Levering, 64 Md., 399; Black on Judgments, sec. 641.) In State v. Buffalo Co., 6 Neb., 454, it was held that the allowance of an account by a county board was a judicial act, and unless appealed from, the order allowing the claim would be final and conclusive; and the same doctrine had previously been announced in Brown v. Otoe Co., 6 Neb., 111. The allowance of the note as a claim against the estate on the 10th of September, 1886, was a final order. The fact that the note was apparently barred by the statute of limitations cannot be considered at this time. The presumption is that the administratrix acted in good faith. Payments may have been made on the note which Elkhorn Land Co. v. Dixon County. were not endorsed thereon, or for other cause, which does not appear, the note may have been a binding obligation against the estate. If it was not, it was the duty of those entrusted with the settlement of the estate to take the necessary steps by appeal to contest the allowance of the same. Having failed to do so the estate is bound by the order allowing the same, and it is now too late to raise the objection. The appeal was properly dismissed and the judgment is THE other judges concur. AFFIRMED. ELKHORN LAND & TOWN LOT Co. v. DIXON COUNTY ET AL. [FILED OCTOBER 26, 1892.] 1. Taxation: PUBLIC LANDS: RAILROAD GRANTS. Upon the facts stated in the petition, held, that the railway company had earned the lands in controversy at the time the taxes were lev. ied and that the state had, prior to said levy, parted with its title to the plaintiff's grantor and that the lands were taxable although the United States did not approve the selection of the state until after the levy of the taxes. 2. : LANDS OMITTED FROM ASSESSMENT ROLLS: AUTHORITY OF COUNTY CLERK TO ENTER. Under section 50 of chapter 46, Rev. Stats., the county clerk had authority, where lands in his county had not been assessed, to "enter the same upon the assessment roll and assess the value." ERROR to the district court for Dixon county. Tried below before NORRIS, J. Davis & Gantt, for plaintiff in error. J. J. McCarthy, contra. Elkhorn Land Co. v. Dixon County. MAXWELL, CH. J. This action was brought by the plaintiff against the defendants to have an alleged cloud removed from certain lands possessed by it in Dixon county caused by the levy of taxes thereon by the county clerk of Dixon county in July, 1871. The petition is too long to copy here. The cancellation of the alleged cloud is sought on two grounds, which will be noticed in their order. First-It is alleged, in substance, that the plaintiff derives title from the state; that the state derived title under the act of September 4, 1841, granting five hundred thousand acres of land to each new state for purposes of internal improvement; that on April 16, 1870, the state selected the lands in question, which selection was approved by the United States, October 13, 1871; that on February 15, 1869, the legislature of the state passed an act donating certain of said lands to such railroad companies as complied with said act by building ten or more miles of railroad; that after February 15, 1869, and before November, 1871, the F., E. & M. V. R. Co. built its third ten miles of railroad and thereupon the governor appointed commissioners, who approved of the same, whereupon, on the 30th day of November, 1870, the governor, in compliance with said law, issued letters patent for said lands to said railroad company, which afterwards conveyed to the plaintiff. It will be observed that the lands were not assessed until the next year after the railway company had obtained its patents. The company, therefore, had not only earned its lands but the state had recognized its right to the same and conveyed its title. The case falls directly within that of White v. B. & M. R. Co., 5 Neb., 393. In that case the section of road in dispute had not been accepted until sometime after the lands were assessed. The evidence that the company had earned the lands by the construction of the required Elkhorn Land Co. v. Dixon County. twenty miles of railroad was the certificate of approval, and until that was obtained its absolute right to the lands did not attach; therefore, the tax was held to be void. In the case at bar, however, the railway company was the owner of the land when the tax was levied, and neither it nor the plaintiff has any just cause of complaint if the court denies it relief. Second-It is alleged that the assessment was made by the county clerk and that he had no authority to assess the same. Section 50, chapter 46, of the Revised Statutes, which was then in force, was as follows: "If on the assessment roll or tax list there be any error in the name of the person assessed or taxed, the name may be changed, and the tax collected from the person intended, if he be taxable and can be identified by the assessor or treasurer, and when the treasurer, after the tax list is committed to him, shall ascertain that any land or other property is omitted he shall report the fact to the county clerk, who, upon being satisfied thereof, shall enter the same upon his assessment roll, and assess the value, and the treasurer shall enter it upon the tax list, and collect the tax as in other cases." Here is full power given the county clerk to make the assessment. There is no complaint that the property was assessed too high, or any ground stated for equitable relief. There is no equity in the petition and the judgment of the court below is AFFIRMED. THE other judges concur. Carver v. Taylor. JOHN F. CARVER, APPELLANT, V. FRANK TAYLOR, APPELLEE. [FILED OCTOBER 26, 1892.] 1. Real Estate: BREACH OF CONTRACT TO CONVEY: PETITION. Held, That the cause of action set forth in the petition relates solely to the breach of contract of the defendant to convey the real estate described in the petition. 2. 3. : : MEASURE OF DAMAGES. In case of the breach of an executory contract to convey real estate where the vendor having title refuses or puts it beyond his power to convey, and no part of the consideration has been paid, the measure of damages which the vendee is entitled to recover is the value of the land at the time the contract should have been performed less the contract price. : :- : NOMINAL DAMAGES. Where the land is of less value than the contract price, the vendee is entitled to recover nominal damages for the breach of contract. APPEAL from the district court for Adams county. Heard below before GASLIN, J. M. A. Hartigan, and J. C. Hartigan, for appellant. Jno. M. Ragan, contra. MAXWELL, CH. J. The cause of action is set forth in the petition as follows: 666 "First-That on the 19th day of January, 1889, the plaintiff John F. Carver entered into a contract with the defendant Frank Taylor in words and figures as follows: Agreement made and entered into this 19th day of January, 1889, by and between John F. Carver, of Allen county, Indiana, as agent, and Frank Taylor, of Adams county, Nebraska, in which agreement the said Frank Taylor, of the second part, agrees to convey by warranty 35 429 39 676 35 429 50 881 |