Armstrong v. Jarron

• Decision Date: 03 May 1912
• Parties: FRANCIS M. ARMSTRONG, Respondent, v. W. C. JARRON, Appellant
• Court: Idaho Supreme Court

125 P. 170

21 Idaho 747

FRANCIS M. ARMSTRONG, Respondent, v. W. C. JARRON, Appellant

Supreme Court of Idaho

May 3, 1912

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. E. C. Steele, Judge.

Action to quiet title. Judgment for appellant. Reversed.

Reversed and remanded. Costs awarded to appellant.

James B. Cordiner, and Daniel Needham, for Appellant.

Respondent received the register's final certificate and the receiver's final receipt for said land on Oct. 25, 1905. Therefore, said land was subject to taxation for all purposes during 1906 and 1907. (Sec. 1643, Rev. Codes; Witherspoon v. Duncan, 71 U.S. (4 Wall.) 210, 18 L.Ed. 339; People ex rel. McCullough v. Shearer, 30 Cal. 645 and cases cited; Black, Tax Titles, sec. 37, and authorities cited; 1 Cooley, Taxation, 3d ed., p. 136, and cases cited.)

By the introduction of the tax deed in evidence, appellant proved that after Aug. 1, 1910, the date of said tax deed, he became the owner in fee simple of the land in controversy (Secs 1764, 1765, 1766, Rev. Codes; Co-op. Sav. & Loan Assn. v Green, 5 Idaho 660, 51 P. 770; Bacon v. Rice, 14 Idaho 107, 93 P. 511; Wilson v. Locke, 18 Idaho 582, 111 P. 247; Stewart v. White, 19 Idaho 60, 112 P. 677); also the existence and validity of all antecedent steps required by law and the authority of the several officers who acted in the matter. (Secs. 1764, 1765, Rev. Codes; Black, Tax Titles, 2d ed., 454; 37 Cyc. 1459, 1460.)

In order to defeat appellant's tax title, respondent must prove the omission of some jurisdictional act or step in the proceedings on which appellant's tax deed is based. (Wilson v. Locke, supra; Stewart v. White, supra; McGowan v. Elder, 19 Idaho 153, 113 P. 102; Rollins v. Wright, 93 Cal. 395, 29 P. 58; Straus v. Foxworth (N. M.), 117 P. 831.)

In adjudicating the rights of the parties, the court should not overlook the importance and legal effect of the curative statutes of the state of Idaho which are applicable. (Sec. 1788, Rev. Codes; 1 Cooley, Taxation, 3d ed., p. 523, and authorities cited; Black, Tax Titles, 2d ed., sec. 491; 37 Cyc. 1378-1380; Wallapai Min. & Dev. Co. v. Territory, 9 Ariz. 373, 84 P. 87.)

The failure to verify the assessment-roll is a mere irregularity which does not affect the validity of the tax proceedings. (Auditor-General v. Sparrow, 116 Mich. 574, 74 N.W. 881; Gates v. Johnson, 121 Mich. 603, 80 N.W. 709; Auditor-General v. Griffin, 140 Mich. 427, 103 N.W. 854; Twinting v. Finlay, 55 Neb. 152, 75 N.W. 548; Spiech v. Tierney, 56 Neb. 514, 76 N.W. 1090; State Finance Co. v. Mather, 15 N.D. 386, 11 Ann. Cas. 1112, 109 N.W. 350; Wabash Ry. Co. v. People, 138 Ill. 316, 28 N.E. 57; Rollins v. Wright, supra.)

It is a general rule, even in the absence of a statutory enactment such as ours, that the provisions of a statute in regard to the time upon which or within which acts are to be done by a public officer are directory. (Hooker v. Bond, 118 Mich. 255, 76 N.W. 404, and cases cited; Haskel v. Reigel, 26 Okla. 87, 108 P. 368, and cases cited.)

At the time that respondent commenced his action, the alleged informality was corrected, for the affidavit required by sec. 1724 had then been attached to the assessment-book. (Sheldon v. Township of Marion, 101 Mich. 256, 59 N.W. 614; Welles v. Battelle, 11 Mass. 477; Gibson v. Bailey, 9 N.H. 168.)

The mere filing of the affidavit is not the jurisdictional fact. (Williams v. City of Caldwell, 19 Idaho 514, 114 P. 519.)

Even though there had been a mistake in the reference to the name of the owner of the land, such an error would not have been material, and would not affect appellant's title to the land in controversy. (Sec. 1789, Rev. Codes; White Pine Mfg. Co. v. Morey, 19 Idaho 50, 112 P. 674; Birney v. Warren, 28 Mont. 64, 72 P. 293; McQuade v. Jaffray, 47 Minn. 326, 50 N.W. 233; Tyler v. Hardwick, 6 Met. (Mass.) 470; Castillo v. McConnico, 168 U.S. 674, 18 S.Ct. 229, 42 L.Ed. 622.)

The court will take judicial notice that all townships in Nez Perce county are situated north of the base line. (Stanton v. Hotchkiss, 157 Cal. 652, 108 P. 864.)

"The description of land in the assessment-roll is sufficient if it affords the means of identification and informs the owner what tract is delinquent, or at least is not calculated to mislead him." (Black, Tax Titles, 2d ed., sec. 112; Cooley, Taxation, 407, 745; Keeley v. Saunders, 99 U.S. 443, 25 L.Ed. 327; Saranac Land & Timber Co. v. Roberts, 177 U.S. 318, 20 S.Ct. 642, 44 L.Ed. 786; 27 Am. & Eng. Ency. of Law, 2d ed., 684; Oregon S. L. R. Co. v. Irrigation Dist., 16 Idaho 606, 102 P. 904; Washington Timber Co. v. Smith, 34 Wash. 625, 76 P. 268.)

The provision of sec. 1730 is only directory. (1 Cooley, Taxation, 3d ed., p. 489; Cooley's Const. Lim., 7th ed., 113.)

When the tax collector signed the tax certificate by using a rubber stamp, with the intention of signing his name, he thereby complied with the law. (Hamilton v. State, 103 Ind. 96, 53 Am. Rep. 491, 2 N.E. 299.)

"Substantial compliance with the requirements of the law in making assessments is all that is required. If property is subject to taxation, it cannot escape through some technical failure of the officer to perform his duty, unless it has actually misled the party to his injury." (Bacon v. Rice, supra; Co-op. S. & L. Assn. v. Green, supra; Oregon S. L. R. R. Co. v. Pioneer Irr. Dist., supra; McGowan v. Elder, supra.)

And "the presumption is that the officer performed his duty in making tax sales." (Stewart v. White, supra.)

In order to defeat appellant's tax title, respondent must prove the omission of some jurisdictional step in the tax proceedings on which the appellant's tax deed is based, to wit, that said land was not subject to taxation, or that the tax thereon had been paid, or that said land had been redeemed from the aforesaid tax sale in the manner provided by law. Everything else is a mere informality which does not affect the substantial rights of respondent. (Rollins v. Wright, supra; Straus v. Foxworth, supra; McCready v. Sexton & Son, 29 Iowa 356, 4 Am. Rep. 214; Lucas v. Purdy, 142 Iowa 359, 19 Ann. Cas. 974, 120 N.W. 1065, 24 L. R. A., N. S., 1294; De Treville v. Smalls, 98 U.S. 521, 25 L.Ed. 174.)

Fred E. Butler, for Respondent.

Whatever statutory provisions are made for notice and hearing must be regarded as mandatory, and a compliance with them in all essentials is a condition precedent to any further proceedings. (Cooley on Taxation, 3d ed., 631, 1393.)

"Before the officer who is designated by law for the duty of collecting taxes can lawfully proceed to do so, he must have his warrant for the purpose, in due form of law. . . . Whatever the statute provides for, the collector must have, and he is a trespasser if he proceeds to compulsory action without it. Upon this point the decisions are unanimous." (Cooley, Taxation, 3d ed., 793, 794; Hilbish v. Hower, 58 Pa. 93; Chalker v. Ives, 55 Pa. 81; Miller v. Kern County, 137 Cal. 516, 70 P. 549; Peebles v. Taylor, 121 N.C. 38, 27 S.E. 999; Maxwell v. Paine, 53 Mich. 30, 18 N.W. 546; Westfall v. Preston, 49 N.Y. 349; Brevoort v. City of Brooklyn, 89 N.Y. 128.)

The assessment-roll must be verified, and without such verification, tax sales made are void. (O'Donnell v. McIntyre, 37 Hun (N. Y.), 615; Kelly v. Craig, 27 N.C. 129.)

Certification must be in writing. (State v. Thompson, 18 S.C. 538.)

If the affidavit has not been made, the facts which should appear cannot be shown aliunde. (Marsh v. County Supervisors, 42 Wis. 502.)

Certification must be made within the required time. (Walker v. City of Burlington, 56 Vt. 131.)

Failure to verify the roll is a necessity, not a mere informality. (Lamb v. Farrell, 21 F. 5; Krutz v. Chandler, 32 Kan. 659, 5 P. 170; Lewellen v. Schooley, 84 Mo. 447; Pike v. Martindale, 91 Mo. 268, 1 S.W. 858; St. Louis & S. F. Ry. v. Epperson, 97 Mo. 300, 10 S.W. 478.)

Tax sales are made exclusively under a statutory power. Defects in the conditions to a statutory authority cannot be aided by the courts; if they have not been observed, the courts cannot dispense with them. (Cooley, Taxation, 3d ed., 912.)

The warrant, authority, certificate, list, or process, by whatever name it may be called, was never issued to the tax collector, and any attempted sale by him was void, as whatever the statute provides, the tax collector or salesman must have. (Lamb v. Farrell, 21 F. 5; Morrow v. Smith, 8 Okla. 267, 61 P. 366; Mattocks v. McLain Land & Inv. Co., 11 Okla. 433, 68 P. 501; Asper v. Moon, 24 Utah 241. 67 P. 409; Kepley v. Scully, 185 Ill. 52, 57 N.E. 187; McGhee v. Sampselle, 47 W.Va. 352, 34 S.E. 815; Mullins v. Shaw, 77 Miss. 900, 27 So. 602, 28 So. 958; Kelley v. Craig, 27 N.C. 129; Hannel v. Smith, 15 Ohio 134.)

If the tax deed fails to recite that a sale made at a different date from the date advertised was an adjourned sale, the tax title is invalid. (Gregg v. Jesberg, 113 Mo. 34, 20 S.W. 652.)

The presumption that the rubber-stamp impression is the signature of the tax collector cannot prevail. The tax certificate therefore stands as an unsigned tax certificate. (36 Cyc. 455.)

If the law is not substantially complied with, or if there is an omission of any jurisdictional act or step, appellant's tax title necessarily fails. (Co-operative Sav. & L. Assn. v. Green, 5 Idaho 660, 51 P. 770; Wilson v. Locke, 18 Idaho 582, 111 P. 247; McGowan v. Elder, 19 Idaho 153, 113 P. 102.)

STEWART, C. J. Ailshie, J., concurs. SULLIVAN, J., Dissenting.

OPINION

STEWART, C. J.

The respondent, Francis M. Armstrong, commenced this action in the district court of Nez Perce county for the purpose of quieting his title to 160 acres of land located in said county and described...