Barlow v. Lonabaugh

• Decision Date: 26 February 1945
• Docket Number: 2245
• Citation: 156 P.2d 289,61 Wyo. 118
• Parties: PERCY W. BARLOW, HARRY W. BARLOW, MARY A. BRINES, E. D. WHITLEY, GEORGE H. OLD, THE INTERNATIONAL TRUST CO., as Trustee for MARY T. GILL, INEZ I. SKEMP, C. R. MASSEY and the FIRST NATIONAL BANK, a Corporation, of Sheridan, Wyoming, Plaintiffs and Appellants, v. MARIE J. LONABAUGH and A. W. LONABAUGH, et al., Defendants and Respondents, AND C. R. MASSEY, Plaintiff and Appellant, v. MARIE J. LONABAUGH and A. W. LONABAUGH, et al, Defendants and Respondents
• Court: Wyoming Supreme Court

156 P.2d 289

61 Wyo. 118

PERCY W. BARLOW, HARRY W. BARLOW, MARY A. BRINES, E. D. WHITLEY, GEORGE H. OLD, THE INTERNATIONAL TRUST CO., as Trustee for MARY T. GILL, INEZ I. SKEMP, C. R. MASSEY and the FIRST NATIONAL BANK, a Corporation, of Sheridan, Wyoming, Plaintiffs and Appellants, v. MARIE J. LONABAUGH and A. W. LONABAUGH, et al., Defendants and Respondents, AND C. R. MASSEY, Plaintiff and Appellant, v. MARIE J. LONABAUGH and A. W. LONABAUGH, et al, Defendants and Respondents

No. 2245

Supreme Court of Wyoming

February 26, 1945

APPEAL from District Court, Sheridan County; JAMES H. BURGESS Judge.

Actions by Percy W. Barlow and others against Marie J. Lonabaugh and A. W. Lonabaugh, and by C. R. Massey against the same defendants, to foreclose special assessment liens in paving districts. From a judgment for defendants, plaintiffs appeal.

Affirmed.

For the Plaintiffs and Appellants the cause was submitted upon the brief of Mr. H. Glenn Kinsley, of Sheridan, Wyoming.

POINTS OF COUNSEL FOR APPELLANTS.

Provisions relative to rights of redemption should be liberally construed in favor of the party who might have a right to redeem. Burns v. State, 25 Wyo. 491, 504, 173 P. 55. In considering redemption Statutes they are to be regarded favorably and construed liberally in favor of the redemptioner. Barrett v. Barrett, 46 Wyo. 84, 23 P. 2d, 857.

A liberal construction of the statute in favor of the right of redemption would require that notice be given to the bond holders or to the City as trustee for the bond holders of the right to redeem, which was never given.

The mere sale of property does not terminate assessment liens. A private purchaser of a general tax certificate does not acquire a lien against the property described in such certificate superior to valid local assessment liens. City of Seattle v. Everett, (Wash.) 215 P. 337; City of Seattle v. Equitable Bond Company (Wash.) 217 P. 721; Investment Co. v. City of Tacoma (Wash.) 233 P 287.

Where there is a sale of the property for general taxes, the right to collect the special assessments is suspended while the property stands in the name of the county, but when the property passes again into the private ownership, the assessments, immediately attach to the property. 113 A.L.R 920.

The notice of redemption which is relied upon as perfecting a tax title and as terminating the lien for special assessments was not given nor served in compliance with the Statute and was void. The owner could not waive this requirement except as to himself and a deed from the owner direct to the defendants conveyed it subject to the special assessments. The purpose of notice . . . is to bring to the person entitled to redeem knowledge that the land has been sold for taxes and within what time the same may be redeemed. State of Wyo. ex rel W. O. Bishop v. Robert Bramblette, 43 Wyo. 470, 5 P.2d 279, 82 A.L.R. 497.

Redemption statutes are to be liberally construed in favor of the taxpaper and strictly against the purchaser. The statute providing for notice is mandatory, and the time when the right to redeem expires must be stated clearly and correctly in the notice. There must be strict compliance. State v. Nord (Minn.) 72 Am. St. Rep. 594, 75 N.W. 760.

The plaintiffs, as bondholders had a right to redeem and there was no lawful notice of redemption given to the owner or to anyone. Almost any right, either at law or in equity, perfect or inchoate, in possession or in action, or whether in the nature of a charge or encumbrance on land amounts to such an ownership as will entitle the party holding it to redeem. If the plaintiffs were entitled to redeem, they are entitled to notice of redemption. Hackett v. Linch (Wyo.) 116 P. 2d 868, 871.

For the Defendants and Respondents the cause was submitted upon the brief of Mr. A. W. Lonabaugh, of Sheridan, Wyoming.

POINTS OF COUNSEL FOR RESPONDENTS.

The lien for general county and state taxes is superior to the special assessment lien, and a valid sale to satisfy the general taxes wipes out the special assessment lien and creates a new and paramount title. Board of County Com'rs of Big Horn County v. Bench Canal Drainage Dist. et al., 108 P. 2d 590.

Where the statute makes the state taxes a superior lien to municipal taxes and local improvements, or where both classes of taxes are to be collected in the same manner and by the same proceedings, those of the latter class will ordinarily be cut off and their lien extinguished by a sale for state taxes in which the local taxes or assessments might have been included, but otherwise the purchaser will take subject to existing taxes of the inferior class. 61 C.J. 1314, Sec. 1839.

When the properties are sold and deeded by the county, subsequent to the time it acquires deeds therefor, the purchasers do not take the same subject to the lien for local improvements, but the proceeds of such sale shall first be applied to discharge in full the lien or liens for general taxes for which the same was sold, and the remainder or such portion thereof as may be necessary, shall be paid to the city to discharge all local assessment liens upon such property, and the surplus, if any, shall be distributed among the proper county funds. Moe v. Brumfield, 47 P. 2d 847.

Where the lien for general taxes is superior to the lien for special assessments, the issuance of a tax deed on sale for the general taxes extinguishes the special assessment lien. Franklin Securities Co. v. Clay, 293 P. 529, (Okl.).

General tax liens are prior and superior to special assessment liens. Western Beverage Co. of Provo v. Hansen, 96 P. 2d 1105 (Utah); Fishel v. City and County of Denver, 95 P. 2d 1 (Colo.); Ingraham et al v. Hanson, 56 S.Ct. 511 (Utah), Tesdell v. Greenwalt, 290 N.W. 676 (Ia.); Flanders v. Inter-Ocean Reinsurance Co. et al, 292 N.W. 795 (Ia.).

BLUME, Chief Justice. RINER, J., concurs.

OPINION

BLUME, Chief Justice.

The two actions herein, brought sometime before April 6, 1938, were consolidated for trial. They were brought for the purpose of foreclosing special assessment liens in paving districts 26 and 27 of the City of Sheridan, Wyoming. The property involved herein is situated in these districts, and defendants claim under a conveyance from Sheridan County, after tax deeds had been issued to that County, and claim that their rights are superior to the rights of the plaintiffs. The court so held, and the plaintiffs have appealed.

Both actions were brought on behalf of the plaintiffs, or plaintiff, and all those situated similarly. Plaintiffs in the first action are holders of bonds issued pursuant to paving assessments in paving district No. 27 in Sheridan, Wyoming. Plaintiff in the second action is holder of bonds issued pursuant to paving assessments in paving district No. 26 in Sheridan, Wyoming. All these bonds were issued on June 1, 1924, and payment thereon was in default, when the actions herein were brought and the proceedings herein were had. Assessments had been made against the lots in controversy in this case, and a considerable amount is due thereon. The validity of the proceedings leading up to the assessments and the issuance of the bonds, and the rights of plaintiffs herein, except as to the defendants, are not in any way questioned, so that no further reference thereto needs to be made. And for convenience the plural will be used in referring to the plaintiffs or plaintiff and whether they are holders of bonds in the one paving district or the other. Only the rights claimed by defendants need to be mentioned in detail.

The property of defendants in paving district No. 27 consists of Lots 2, 4, 6 and 8 of Block 83, and Lots 1, 3, 5, 7, 9, 11 and 13 of Block 14 of the Grinnell Addition to the City of Sheridan, Wyoming. This property will hereafter be referred to as the Dana lots, they being owned by E. L. Dana until December 31, 1937. The facts as to the title and the acquisition thereof by defendants are, as found by the court on February 4, 1942, pursuant to stipulation of the parties, as follows: There were duly assessed against these lots, for the year 1932, general county and state taxes in the sum of $ 434.05. The taxes not being paid, the property was sold therefor on September 15, 1933, to Sheridan County for $ 471.77. The validity of such assessment and sale is not questioned. Before the period of redemption expired, E. L. Dana, the owner, advised the County Treasurer of Sheridan County (possibly pursuant to an informal notice) that he did not want to redeem the property from the tax sale, and he and his wife, on December 31, 1937, gave a quit claim deed conveying the property to the County. Thereafter on the same day, the Treasurer of Sheridan County executed a tax deed, conveying the property to that County. No formal notice of the expiration of the time of redemption was given. On April 6, 1938, the Board of County Commissioners of Sheridan County conveyed the property to the defendants, Marie J. Lonabaugh and A. W. Lonabaugh, for a consideration of $ 400. The defendants have been in possession of the property ever since, and paid taxes thereon for the year 1938 in the sum of $ 168.17; for the year 1939, in the sum of $ 167.31; for the year 1940, in the sum of $ 163.33. The money paid by defendants has not been repaid, and no tender of repayment has been made by plaintiff.

The property of the defendants in paving district No. 26 consists of Lots 18, 19 and 20 of Block 40 of Sheridan Land Company Addition to the City of Sheridan, hereinafter referred to as the Coffeen lots. These lots were owned in 1930 by Jennie H Coffeen, who died on November 5, 1931. The lots were duly assessed for general state and county tax in 1930 in the sum of $ 62.40. The taxes not being paid, the...