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304 Nebraska Reports

ADAIR HOLDINGS v. JOHNSON

Cite as 304 Neb. 720

Adair Holdings, LLC, appellant, v. 

Dennis G. Johnson et al., appellees.

___ N.W.2d ___

Filed January 3, 2020. No. S-18-1214.

1. Standing: Jurisdiction: Parties. Standing is a jurisdictional component 

of a party’s case because only a party who has standing may invoke the 

jurisdiction of a court.

2. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of law, upon which an appellate court reaches a conclusion independent of the trial court.

3. Summary Judgment: Appeal and Error. An appellate court affirms a 

lower court’s grant of summary judgment if the pleadings and admitted 

evidence show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts and that 

the moving party is entitled to judgment as a matter of law.

4. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted, and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

5. Equity: Quiet Title. A quiet title action sounds in equity.

6. Equity: Appeal and Error. On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent 

of the conclusion reached by the trial court, provided that where credible 

evidence is in conflict on a material issue of fact, the appellate court 

considers and may give weight to the fact that the trial judge heard 

and observed the witnesses and accepted one version of the facts rather 

than another.

7. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/06/2020 01:08 AM CST
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ADAIR HOLDINGS v. JOHNSON

Cite as 304 Neb. 720

8. Title: Deeds: Tax Sale. Actions challenging title obtained via a tax deed 

are governed by statute.

9. Title: Deeds: Tax Sale: Quiet Title. Because a void tax deed grants 

color of title in a potential future action, it will always be incumbent 

upon the original landowner to bring an action to quiet title in his or 

her name.

10. Title: Deeds: Tax Sale: Words and Phrases. The word “paid” in Neb. 

Rev. Stat. § 77-1844 (Reissue 2009) includes tendering payment.

11. Title: Deeds: Tax Sale: Jurisdiction: Notice. Neb. Rev. Stat. § 77-1843 

(Reissue 2009) has a jurisdictional component that renders a tax deed 

void when the tax deed holder failed to comply with the statutory notice 

requirements prior to acquiring the deed.

12. Title: Deeds: Tax Sale: Notice. A misstatement in the statutory notice 

of the expiration of the time of redemption renders the tax deed invalid.

13. Quiet Title. The party seeking to quiet title must recover, if at all, on 

the strength of his own title and not on the weakness of his adversary’s title.

14. Equity. The relief ordinarily granted in equity is such as the nature of 

the case, the law, and the facts demand.

15. Equity: Quiet Title. In quiet title actions, one who seeks equity must 

do equity.

16. 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 Franklin County: Terri 

S. Harder, Judge. Affirmed.

Deana K. Walocha for appellant.

Nicholas R. Norton, of Jacobsen, Orr, Lindstrom & Holbrook, 

P.C., L.L.O., for appellee Dennis G. Johnson.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

Adair Holdings, LLC, brought a quiet title action after 

obtaining a tax deed. Adair Holdings’ predecessor in interest 

attempted to provide Dennis G. Johnson, the owner of record, 
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ADAIR HOLDINGS v. JOHNSON

Cite as 304 Neb. 720

with notice of the application for a tax deed via certified mail 

and then by publication. However, the notice contained incorrect information about the timeframe in which Johnson could 

redeem the property. On a motion for summary judgment, the 

trial court determined that the deed was void for incorrect 

notice and granted Johnson’s counterclaim for quiet title. The 

court did not order Johnson to reimburse Adair Holdings for 

the delinquent taxes paid by Adair Holdings’ predecessor in 

interest. Adair Holdings appeals.

BACKGROUND

Adair Asset Management, L.L.C. (Adair Management), 

and BMO Harris Bank purchased a tax sale certificate from 

Franklin County. This tax sale occurred in March 2014 for 

taxes that were unpaid from 2012. Adair Management then 

paid the delinquent taxes for 2013, 2014, and 2015 as well.

After purchasing the tax certificate, Adair Management 

waited the 3-year statutory period set forth by Neb. Rev. Stat. 

§ 77-1837 (Reissue 2009) and then sent notice in March 2017 

by certified mail to Johnson’s address of record. This notice 

indicated that Adair Management would be applying for a tax 

deed within 90 days if the property was not redeemed. The 

certified mail was marked as “Return to Sender, Unclaimed, 

Unable to Forward.” After the attempt to provide notice by mail 

failed, notice was published in the Franklin County Chronicle 

newspaper on April 5, 12, and 19, 2017.

The content of the notice included the statutory requirements 

of Neb. Rev. Stat. § 77-1831 (Reissue 2009). The notice also 

contained a phrase from a more recent version of § 77-1831, 

which phrase read:

If the property is owner occupied, the right of redemption shall expire at the close of business on the 45th day 

after the application for tax deed has been made. An additional redemption fee equal to twenty percent of all other 

amounts due must be paid if redemption is made after 

application for treasurer’s deed has been made.
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ADAIR HOLDINGS v. JOHNSON

Cite as 304 Neb. 720

This passage was a part of § 77-1831 (Cum. Supp. 2012); however, the statutory scheme contains a savings clause specifying that the 2009 law governs all tax sale certificates sold and 

issued between January 1, 2010, and December 31, 2014.1 It 

does not appear from the record that Adair Management sent 

a copy of the published notice to Johnson’s address of record.

Adair Management and BMO Harris Bank applied for the 

tax deed on July 19, 2017. The application included an affidavit 

by counsel stating that Adair Management had complied with 

the statutory requirements and provided notice via unclaimed 

certified mail and by publication. The treasurer issued a tax 

deed on July 25, 2017, and recorded it on July 31. In August, 

Adair Management and BMO Harris Bank provided a quitclaim deed to Adair Holdings for land described as follows: 

“The Southeast Quarter (SE 1⁄4) of Section Five (5), Township 

Four (4) North, Range Fourteen (14), West of the 6th P.M. in 

Franklin County, Nebraska.”

In October 2017, Adair Holdings commenced an action in 

equity to quiet title to the real estate in its name. Johnson filed 

an answer and a counterclaim requesting the court to quiet title 

in his name. Johnson argued that (1) the notice was statutorily defective for including a misstatement of law and (2) the 

notice was constitutionally defective according to Neb. Const. 

art. VIII, § 3, which requires that “occupants shall in all cases 

be served with personal notice before the time of redemption 

expires.” In April 2018, Johnson served Adair Holdings with a 

set of requests for admissions and received no response.

Johnson moved for summary judgment, and a hearing was 

held in September 2018. In an affidavit entered at the summary 

judgment hearing, Johnson averred that he first discovered the 

existence of the tax deed in early August 2017. Johnson claims 

that he then reviewed the published notice and relied on the 

notice in believing he had 45 days to redeem the property. 

The 45th day from the issuance of the tax deed was Saturday, 

1 See Neb. Rev. Stat. § 77-1837.01 (Cum. Supp. 2016).
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ADAIR HOLDINGS v. JOHNSON

Cite as 304 Neb. 720

September 2, 2017. Johnson attempted to tender payment to the 

Franklin County treasurer on the first business day following 

September 2, and the treasurer refused payment because the tax 

deed had been issued.

Johnson argued that the notice contained a misstatement of 

law, as admitted by Adair Holdings’ failure to respond to his 

requests for admissions, and that thus, the tax deed was void. 

Johnson also argued that Adair Management failed to inspect 

the land and should have served him personal notice pursuant 

to the Nebraska Constitution.

The court granted the motion for summary judgment in 

favor of Johnson, citing Adair Management’s failure to comply 

with the notice requirements. The order (1) ruled that the tax 

deed was void, (2) ruled that the tax sale certificate was invalid 

and of no force and effect, and (3) quieted title to the property 

in Johnson. Adair Holdings appeals.

ASSIGNMENTS OF ERROR

Adair Holdings argues that the district court erred in granting 

summary judgment to Johnson. Specifically, Adair Holdings 

argues that (1) the tax sale certificate is still valid because the 

voiding of a tax deed does not extinguish the lien for delinquent taxes and (2) the tax deed is not void because all the 

statutory requirements for notice were met and Johnson did 

not detrimentally rely on the misstatement of the law contained 

within the notice.

STANDARD OF REVIEW

[1,2] Standing is a jurisdictional component of a party’s 

case because only a party who has standing may invoke the 

jurisdiction of a court.2 The question of jurisdiction is a question of law, upon which an appellate court reaches a conclusion 

independent of the trial court.3

2 Wisner v. Vandelay Investments, 300 Neb. 825, 916 N.W.2d 698 (2018).

3 Id.
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ADAIR HOLDINGS v. JOHNSON

Cite as 304 Neb. 720

[3] An appellate court affirms a lower court’s grant of summary judgment if the pleadings and admitted evidence show 

that there is no genuine issue as to any material facts or as 

to the ultimate inferences that may be drawn from the facts 

and that the moving party is entitled to judgment as a matter 

of law.4

[4] In reviewing a summary judgment, an appellate court 

views the evidence in the light most favorable to the party 

against whom the judgment was granted, and gives that 

party the benefit of all reasonable inferences deducible from 

the evidence.5

[5,6] A quiet title action sounds in equity.6 On appeal from 

an equity action, an appellate court tries factual questions de 

novo on the record and, as to questions of both fact and law, 

is obligated to reach a conclusion independent of the conclusion reached by the trial court, provided that where credible 

evidence is in conflict on a material issue of fact, the appellate 

court considers and may give weight to the fact that the trial 

judge heard and observed the witnesses and accepted one version of the facts rather than another.7

[7] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the 

court below.8

ANALYSIS

[8,9] Disputes involving land that has been subjected to a 

government tax sale presents a unique situation where there 

are often two interrelated but distinct causes of action. Actions 

challenging title obtained via a tax deed are governed by 

4 Williamson v. Bellevue Med. Ctr., ante p. 312, 934 N.W.2d 186 (2019).

5 Id.

6 Wisner v. Vandelay Investments, supra note 2.

7 Id.

8 Id.
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ADAIR HOLDINGS v. JOHNSON

Cite as 304 Neb. 720

statute. However, a successful challenge to a tax deed does not 

resolve the underlying land dispute. Because a void tax deed 

grants color of title in a potential future action, it will always 

be incumbent upon the original landowner to bring an action 

to quiet title in his or her name.9 This case presents Adair 

Holdings and Johnson’s quiet title actions, as well as Johnson’s 

action challenging Adair Management’s tax deed under the 

provisions of Neb. Rev. Stat. §§ 77-1801 to 77-1863 (Reissue 

2009). We first address the court’s order granting summary 

judgment in favor of Johnson on his statutory cause of action 

challenging the tax deed.

Validity of Adair Management’s 

Tax Deed

Sections 77-1801 to 77-1863 govern tax deeds and provide 

the basic process by which a county may, through a tax sale, 

sell land to third parties as a means of recovering the landowner’s delinquent taxes.10 This court has long held that the statutory system for tax deeds found in chapter 77, article 18, of the 

Nebraska Revised Statutes must be strictly complied with and 

is to be strictly construed in favor of the landowner.11

Under the statutory scheme, a third party who pays a landowner’s delinquent taxes receives in exchange a tax sale certificate and a tax lien against the property.12 Title to the land 

does not immediately transfer to the tax sale certificate holder. 

These statutes require that a certificate holder must wait 3 

years in order to either apply for a tax deed or foreclose upon 

the property.13

9 See, White v. Musser, 87 Neb. 628, 127 N.W. 1058 (1910); Annot., 38 

A.L.R.2d 986 (1954).

10 See §§ 77-1801 to 77-1822.

11 See, King v. Boettcher, 96 Neb. 319, 147 N.W. 836 (1914); Howell v. 

Jordan, 94 Neb. 264, 143 N.W. 217 (1913).

12 See §§ 77-1801 to 77-1863.

13 § 77-1837 and Neb. Rev. Stat. § 77-1902 (Reissue 2009).
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ADAIR HOLDINGS v. JOHNSON

Cite as 304 Neb. 720

During this 3-year period, the landowner maintains the right 

to redeem the land by paying the delinquent taxes along with 

a statutorily set interest rate and costs.14 If, at the end of the 

3 years, the property has not been redeemed, the certificate 

holder has only 6 months to request a tax deed or foreclose 

before both the certificate and tax lien expire.15

In order to apply for a tax deed during this 6-month window, 

the certificate holder must provide proper notice to all parties 

of record.16 The certificate holder must submit an affidavit to 

the county treasurer to demonstrate that all of the statutory 

requirements have been satisfied before a tax deed can be 

issued.17 Once a tax deed is issued, §§ 77-1843 and 77-1844 

specify how a landowner can acquire standing to challenge a 

tax deed under the statutes and what proof is required.

[10] Johnson’s counterclaim seeking to set aside Adair 

Management’s tax deed raises a threshold issue of whether 

Johnson had standing under § 77-1844, which states that “[n]o 

person shall be permitted to question the title acquired by a 

treasurer’s deed without first showing . . . that all taxes due 

upon the property have been paid by such person . . . .” Section 

77-1844 provides in full:

No person shall be permitted to question the title 

acquired by a treasurer’s deed without first showing that 

he, or the person under whom he claims title, had title to 

the property at the time of the sale, or that the title was 

obtained from the United States or this state after the sale, 

and that all taxes due upon the property had been paid by 

such person or the persons under whom he claims title 

as aforesaid.

In applying this statute and its predecessors, we have held that 

the tender of payment to the county treasurer is sufficient to 

14 §§ 77-1824 to 77-1830.

15 § 77-1856.

16 § 77-1831.

17 §§ 77-1832 and 77-1833.
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Cite as 304 Neb. 720

grant the party standing.18 We have understood the treasurer to 

be the intended payee of the payment described by § 77-1843 

and have recognized that the statutory scheme does not actually allow the treasurer to accept a redemption payment after 

the tax deed is issued.19 We have explained that it would place 

an unacceptable barrier to litigation to condition standing on 

something outside a plaintiff’s control.20 Therefore, the word 

“paid” in § 77-1844 includes tendering payment. Construing 

§ 77-1844 otherwise would present an absurd result of rendering the remedy of § 77-1843 meaningless and would be contrary to the principle that the statutory framework should be 

interpreted in favor of the landowner.21

It is undisputed that Johnson attempted to tender payment to the county treasurer. He did so outside the statutory 

redemption period, but within the redemption period that Adair 

Management set forth in the public notice. It is also undisputed 

that because the tax deed had already been issued, the treasurer 

refused to accept the payment. Accordingly, the district court 

did not err in determining as a matter of law that Johnson’s 

attempt to tender payment complied with § 77-1844 and gives 

him standing to assert his counterclaim.

[11] Once a party has established standing, § 77-1843 specifies four methods for a landowner to challenge the tax deed. In 

addition to these enumerated ways of invalidating a tax deed, 

we have also held that § 77-1843 has a jurisdictional component that renders a tax deed void when the tax deed holder 

failed to comply with the statutory notice requirements prior to 

acquiring the deed.22 Section 77-1843 states:

18 See, Ottaco Acceptance, Inc. v. Larkin, 273 Neb. 765, 733 N.W.2d 539 

(2007); Howell v. Jordan, supra note 11.

19 § 77-1824; Ottaco Acceptance, Inc. v. Larkin, supra note 18.

20 See, Ottaco Acceptance, Inc. v. Larkin, supra note 18; Howell v. Jordan,

supra note 11.

21 See King v. Boettcher, supra note 11.

22 Thomsen v. Dickey, 42 Neb. 314, 60 N.W. 558 (1894).
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Cite as 304 Neb. 720

In all controversies and suits involving the title to real 

property claimed and held under and by virtue of a deed 

made substantially by the treasurer in the manner provided by sections 77-1831 to 77-1842, the person claiming 

the title adverse to the title conveyed by such deed shall 

be required to prove, in order to defeat the title . . . .

(Emphasis supplied.)

When interpreting § 77-1843 and its predecessors, we 

explained that the language of “in the manner provided by” 

requires strict compliance with the listed statutes in order for 

the treasurer to have acquired statutory authority to issue the 

tax deed.23

We agree with the district court that there is no dispute that 

Adair Management failed to strictly comply with the notice 

provision of § 77-1831 (Reissue 2009), which specifies the 

timing and content of the notice that must be served before a 

tax deed will be granted. Adair Management’s notice provided 

the terms of notice set forth by § 77-1831 (Cum. Supp. 2012), 

which allowed for an owner who occupies the land to redeem 

within 45 days of the tax deed being issued. However, this was 

not the version applicable to Adair Management’s tax certificate from the tax sale of Johnson’s land. Section 77-1837.01 

specified that based on the date of sale for the tax certificate 

for Johnson’s land, the 2009 version of the statutes should be 

applied. Sections 77-1824 and 77-1831 (Reissue 2009) specified that Johnson’s right to redeem expired upon the issuance 

of the tax deed.

[12] We have held that a misstatement in the statutory notice 

of the expiration of the time of redemption renders the tax deed 

invalid.24 It is uncontested that the notice Adair Management 

mailed to Johnson and published in the newspaper contained 

23 See, Brokaw v. Cottrell, 114 Neb. 858, 211 N.W. 184 (1926); Thomsen v. 

Dickey, supra note 22.

24 See, Kuska v. Kubat, 147 Neb. 139, 22 N.W.2d 484 (1946); Stewart v. 

Ridenour, 97 Neb. 451, 150 N.W. 206 (1914).
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Cite as 304 Neb. 720

a misstatement of the time available for Johnson to redeem 

the land. Therefore, the district court correctly determined as 

a matter of law that the tax deed issued to Adair Management 

is void.

We disagree with Adair Holdings’ contention that Johnson 

was required to show detrimental reliance as a condition for 

invalidating a tax deed for inaccurate notice. Adair Holdings 

provides no case law, and this court is not aware of any precedent in Nebraska or in other states, that would support the 

creation of such a requirement. Placing a burden on the landowner to show detrimental reliance on the inaccurate notice is 

not supported by any part of the statutory scheme.

Johnson’s Counterclaim 

for Quiet Title

[13] We turn next to the question of whether the district 

court erred in granting summary judgment in favor of Johnson 

on his quiet title claim. Quiet title actions generally require 

(1) allegations of facts showing his or her ownership, title, 

or interest in the property in dispute; (2) his or her actual or 

constructive possession (if possession is a condition of the 

right to maintain the action) or entitlement to possession of 

the property in dispute; and (3) the existence and invalidity of 

the defendant’s interest, claim, or lien adverse to the plaintiff.25

Moreover, the party seeking to quiet title must recover, if at all, 

on the strength of his own title and not on the weakness of his 

adversary’s title.26

Johnson presented uncontested evidence that he was the 

landowner of record and held a deed registered with the county 

prior to the tax sale. By invalidating Adair Holding’s deed, 

Johnson demonstrated that no one else had a superior claim to 

title. Such facts are sufficient to determine as a matter of law 

Johnson’s legal claim to title.

25 See 65 Am. Jur. 2d Quieting Title § 67 (2011).

26 See Williams v. Daughetee, 72 Neb. 270, 100 N.W. 316 (1904).
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[14,15] But, a quiet title action sounds in equity.27 The relief 

ordinarily granted in equity is such as the nature of the case, 

the law, and the facts demand.28 In quiet title actions, we have 

generally applied the maxim that “‘[one] who seeks equity 

must do equity.’”29 Specifically, we have required a landowner to do the equity of paying to the clerk of the court the 

delinquent taxes with costs and interest before obtaining the 

equitable relief of quiet title.30 Adair Holdings thus argues on 

appeal that the district court erred in quieting title in Johnson’s 

name without ordering Johnson to pay to Adair Holdings the 

delinquent taxes, with costs and interest.

Adair Holdings did not assign as error that the district court 

erred by not ordering such a payment. It merely proposes in 

its argument that if we affirm the district court’s determination 

that the tax deed was void, we should remand the matter to the 

district court to determine the amount of the delinquent taxes. 

Although not entirely clear, Adair Holdings presumably wishes 

us to do this so that such amount will be ordered as part of a 

judgment payable by Johnson to Adair Holdings.

[16] 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.31 Even if we view this 

argument as encompassed by Adair Holdings’ assignment of 

error that the trial court erred when it held that the tax sale certificate was invalid and of no force and effect, Adair Holdings’ 

argument lacks merit under the facts of this case. The equitable 

maxim that one who seeks equity must do equity is not the 

only applicable legal principle to a case such as this. In fact, 

27 Wisner v. Vandelay Investments, supra note 2.

28 Countryside Developers v. Peterson, 9 Neb. App. 798, 620 N.W.2d 124 

(2000).

29 Wygant v. Dahl, 26 Neb. 562, 576, 42 N.W. 735, 739 (1889) (Maxwell, J., 

concurring). See Dillon v. Merriam, 22 Neb. 151, 34 N.W. 344 (1887).

30 See, Howell v. Jordan, supra note 11; Wygant v. Dahl, supra note 29.

31 Diamond v. State, 302 Neb. 892, 926 N.W.2d 71 (2019).
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the case law that Adair Holdings relies on is inapposite to the 

case at bar because, in those cases, the former certificate holder 

asked for recovery for payments made and presented evidence 

to the trial court that the former certificate holder had paid the 

delinquent taxes to the county.

In Wygant v. Dahl, for instance, we held that a tax deed 

holder who failed to bring a quiet title action within the statutory period was nevertheless entitled under equity to be reimbursed by the landowner in possession who had brought a quiet 

title action against the tax deed holder. But we emphasized 

that the tax deed holder had raised the right to reimbursement below. We cited with approval a case in which the Iowa 

Supreme Court held that notwithstanding the maxim that one 

who seeks equity must do equity, if a tax deed holder does not 

in the proceedings below make a request for equitable relief in 

the form of a recovery of a tax sale payment, such relief may 

not be raised for the first time on appeal.32

Adair Holdings did not raise below the issue of recovery 

for payment of the delinquent taxes. We require arguments and 

theories of litigation to be raised below in order to provide sufficient notice to opposing parties.33 Unless the landowner has 

notice that the certificate holder is claiming a right to repayment, the landowner is unlikely to plead and present evidence 

of any possible equitable defenses which may prevent the tax 

deed holder from recovering. Adair Holdings had an opportunity to request alternate forms of relief in its pleadings and 

in its answer to Johnson’s counterclaim for quiet title. Adair 

Holdings did not state any claim for relief in the form of reimbursement by Johnson of the delinquent taxes paid by Adair 

Management. Neither did Adair Holdings raise the right to any 

such relief at any other point in the proceedings below.

32 See Wygant v. Dahl, supra note 29, citing Tabler v. Callanan, 49 Iowa 362 

(1878).

33 See State v. Kruse, 303 Neb. 799, 931 N.W.2d 148 (2019).
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This matter is further complicated by the fact that Adair 

Holdings is not the entity that actually paid the delinquent 

taxes to the county. The record demonstrates that a quitclaim 

deed from Adair Management and BMO Harris Bank transferred whatever interest they had in the land to Adair Holdings. 

But the record below provides no indication that any claims 

or rights to relief held by Adair Management or BMO Harris 

Bank were assigned to Adair Holdings. On the record presented, to require Johnson to pay Adair Holdings would provide Adair Holdings with compensation for a payment made by 

a third party without a sufficient showing that Adair Holdings 

has obtained standing to assert such a claim.

We hold, on the facts of this case, that summary judgment in favor of Johnson’s counterclaim for quiet title was 

proper and that equity does not require relief to be granted to 

Adair Holdings. Adair Holdings did not request any forms of 

equitable relief below and did not assign any errors related 

to equitable relief on appeal. We do not make any determination of what rights or relief, if any, Adair Holdings, Adair 

Management, and/or BMO Harris Bank may be entitled to in a 

separate action.

CONCLUSION

For the reasons set forth above, we affirm the decision of the 

district court.

Affirmed.