Bacon v. Rice

• Citation: 14 Idaho 107,93 P. 511
• Parties: HARVEY M. BACON, Appellant, v. LEMUEL J. RICE, Respondent
• Decision Date: 17 January 1908
• Court: United States State Supreme Court of Idaho

93 P. 511

14 Idaho 107

HARVEY M. BACON, Appellant, v. LEMUEL J. RICE, Respondent

Supreme Court of Idaho

January 17, 1908

ACTION TO QUIET TITLE-CROSS COMPLAINT-TAX SALE-VALIDITY OF TAX SALE CERTIFICATES AND TAX DEEDS-CONSTITUTIONALITY OF LAW-LACHES.

1. Under the provisions of sec. 4188, Rev. Stat., the defendant may, in addition to his answer, file a cross-complaint demanding affirmative relief affecting the property to which the action relates.

2. The sufficiency of a cross-complaint, in an action to quiet title, is determined by the same rules as the sufficiency of the complaint.

3. In an action to quiet title, where a defendant relies upon title in himself, a cross-complaint is not necessary.

4. In an action to quiet title, where the defendant seeks to enforce an equitable title against the plaintiff as the holder of the legal title, a cross-complaint is proper.

5. In an action to quiet title, the defendant may put in issue the plaintiff's right to recover by denials alone, but where he seeks affirmative relief based upon an equitable title and to have the title quieted in himself as against the plaintiff, it is necessary that he file a cross-complaint.

6. Where the defendant pleads title by reason of a tax sale and a tax deed issued thereon, and it appears that the law governing the assessment and sale of property for taxes has been substantially complied with, the original owner of the property cannot question the constitutionality of the law under which the sale was made, where he has not been misled and had permitted the property to be sold for delinquent taxes, and the purchaser to take possession thereof and pay taxes thereon for a period of twelve years, during which time he has taken no steps to call in question the validity of such sale, or the title acquired thereunder.

(Syllabus by the court.)

APPEAL from the District Court of Sixth Judicial District for Fremont County. Hon. J. M. Stevens, Judge.

Action to quiet title. Judgment for plaintiff. Judgment affirmed.

Judgment of the lower court affirmed with costs.

Soule &amp Soule, for Appellant.

Under our law the character of a tax sale certificate is such that it is not admissible in evidence for the purpose of establishing title to land. The court have so held under similar statutes. (Ludden v. Hansen, 17 Neb. 354, 22 N.W. 766; Cruser v. Williams, 13 N.D. 284, 100 N.W. 721.) A tax sale certificate does not convey any title whatever to the purchaser or holder of said certificate, but only a lien for taxes vests in such purchaser. (Sec. 1547, Rev. Stat., as amended; State v. Godfrey, 62 Ohio St. 18, 56 N.E. 482; Cruser v. Williams, 13 N.D. 284, 100 N.W. 721; Wilson v. Wood, 10 Okla. 279, 61 P. 1045; Ives v. Beeler, 9 Kan. App. 892, 59 P. 726; Felch v. Travis, 92 F. 210; Wilcox v. Leach, 123 N.C. 74, 31 S.E. 374; Horn v. Garry, 49 Wis. 464, 5 N.W. 897; Phillips v. Meyers, 55 Iowa 265, 7 N.W. 580; Spratt v. Price, 18 Fla. 289; Dolph v. Barney, 5 Ore. 191.)

The tax sale certificates introduced in evidence for the sales of the land in question for the delinquent taxes for the years 1895, 1896, 1897 and 1898, and the tax deed based on the tax sale certificate for the year 1898, show upon their face that in each case the land in controversy was struck off to the county as the purchaser on the first day of the sale and the first time the property was offered for sale. Under our statutes this recital in the certificates and deed renders them all null and void. The decisions of all the courts on similar statutes unanimously hold that such certificates of sale and such tax deeds are void. (Magill v. Martin, 14 Kan. 67; Larkin v. Wilson, 28 Kan. 513; Norton v. Friend, 13 Kan. 533; Babbitt v. Johnson, 15 Kan. 252; Thompson v. Roberts, 16 S.D. 403, 92 N.W. 1079; Reckitt v. Knight, 16 S.D. 395, 92 N.W. 1077; Hanenkratt v. Hamil, 10 Okla. 219, 61 P. 1050; Cooley on Taxation, 2d ed., p. 510; Dyke v. Whyte, 17 Colo. 296, 29 P. 128; Charlton v. Kelley, 7 Colo. App. 301, 43 P. 455, 24 Colo. 273, 50 P. 1042; Charlton v. Toomey, 7 Colo. App. 304, 43 P. 454; Wade v. Crouch, 14 Okla. 593, 78 P. 91.)

J. D. Millsaps, for Respondent.

In an action to quiet title, the defendant must answer, setting up whatever right, title or interest he may have or claim in the property, if he intends to insist upon the validity of such claim as a defense, and he must plead all his claims, for he will be concluded as to all of them, whether pleaded or not, as it is the purpose of the action to settle in one comprehensive suit and put finally to rest all conflicting claims to the title. (2 Ency. of Pl. & Pr. 349; Pennie v. Hildredth, 81 Cal. 127, 22 P. 398; People v. Center, 66 Cal. 551, 5 P. 263, 6 P. 481; Landregan v. Pippin, 94 Cal. 465, 29 P. 771; Burris v. Kennedy, 108 Cal. 331, 41 P. 458; Webber v. Clarke, 74 Cal. 11, 15 P. 431.)

A tax sale certificate is admissible in evidence for the purpose of establishing title to land after time for redemption has expired, and especially is this so where the county became the purchaser and has or has not sold its interest. (Black on Tax Titles, 2d ed., p. 391, par. 315; Dolph v. Barney, 5 Ore. 191; Quinby v. North American Coal Co., 2 Heisk, 596; McCready v. Sexton, 29 Iowa 356, 4 Am. Rep. 214; Henderson v. Olive, 32 Iowa 512; Clark v. Thompson, 37 Iowa 536; Hall v. Theisen, 61 Cal. 524; DeTreville v. Smalls, 98 U.S. 517, 25 L.Ed. 174; Keely v. Sanders, 99 U.S. 441, 25 L.Ed. 327; Bryant v. Estabrook, 16 Neb. 217, 20 N.W. 245; State v. Van Every, 75 Mo. 530; Overing v. Foote, 43 N.Y. 290.)

If there was a valid sale of the property in 1896 for the taxes of 1895 and the county acquired a good and valid title to the same under said sale, then all subsequent sales were invalid and void, and no subsequent sale of the property, however illegal it may be, can render the previous sale invalid and void. Substantial compliance with the law is all that is required in tax titles, and no assessment or act relating to assessments is illegal on account of any informality. (Sec. 1704, Rev. Stat.; Co-operative Savings and Loan Assn. v. Green, 5 Idaho 660, 51 P. 770; Martin v. Garrett, 49 Kan. 131, 30 P. 168; Mack v. Price, 35 Kan. 134, 10 P. 521; Callanan v. Hurley, 93 U.S. 387, 23 L.Ed. 931.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

This is an action brought under the provisions of sec. 4538, Rev. Stat., which provides that "An action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim." The complaint is in the ordinary form of an action to quiet title. The plaintiff alleges that for more than fifteen years immediately preceding the commencement of the action, he has been the owner and in possession of and claims title in fee to the land described; that the defendant claims some estate, right, title or interest in or to the premises, the nature and extent of which is unknown to the plaintiff, unless it be that the defendant claims the title or interest through and by virtue of a quitclaim deed from one Bird H. Miller and Rose D. Miller, his wife, purporting to convey the premises to the defendant, and the plaintiff alleges that if defendant claims title through said deed, that said Bird H. Miller and Rose D. Miller had no title to said land conveyed or attempted to be conveyed by said quitclaim deed, and that the claim or claims of the defendant are without right or title.

To this complaint the defendant answered, denying specifically the allegations of the complaint, except admitting that the defendant claims an estate and title to said premises, and admits that he claims title by virtue of a quitclaim deed from one Bird H. Miller, and denies that Miller had no title to said premises. And for cross-complaint, the defendant alleges that said premises were sold at tax sale to the county of Fremont for nonpayment of taxes for the years 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902 and 1903, and that Fremont county assigned the certificates of tax sale to one Bird H. Miller; that on July 14, 1905, the assessor and ex-officio tax collector of Fremont County made, executed and delivered to said Bird H. Miller a tax deed to said premises for the delinquent taxes upon said property for the years 1895, 1896 and 1897, and on the same day executed another tax deed to said Bird H. Miller for said premises, for the delinquent taxes for the year 1898, and on September 25, 1905, Bird H. Miller and wife conveyed said premises to this defendant by quitclaim deed. The defendant further alleges that he is the owner of said premises and has been since October 3, 1905, the date of the delivery of the deed from Bird H. Miller to this defendant, and since which date he has been in the possession, holding and claiming adversely to the plaintiff and adversely to all other persons, the lands and premises described in the pleadings and in the Miller deed; and that at the commencement of this suit, the defendant and his grantors for more than five years had been in the quiet and peaceable possession, claiming the same under color of right and title, open and notoriously to the plaintiff and all the world, and that defendant paid all the taxes assessed against said premises, and that the plaintiff has no right or title to the same, from which he prays that his title be quieted.

To this cross-complaint, the plaintiff filed a motion for an order requiring that the defendant make his cross-complaint on file more definite and certain, by separating and stating the different causes of action set out contending that inasmuch as the cross-complaint sets up several tax sale certificates and two separate tax deeds, that each tax sale...