Barrett v. Barrett, 1794

• Decision Date: 05 July 1933
• Docket Number: 1794
• Citation: 23 P.2d 857,46 Wyo. 84
• Parties: BARRETT, ET AL. v. BARRETT, ET AL
• Court: Wyoming Supreme Court

23 P.2d 857

46 Wyo. 84

BARRETT, ET AL. v. BARRETT, ET AL

No. 1794

Supreme Court of Wyoming

July 5, 1933

APPEAL from the District Court of Sweetwater County. V. J. TIDBALL Judge.

Suit by Patrick C. Barrett and others, as executors of the estate of Mary Barrett, deceased, against James Barrett and others. From a decree for defendants, plaintiffs appeal.

Reversed.

For the plaintiffs and appellants there was a brief and oral argument by Mr. Walter Q. Phelan, of Cheyenne, Wyoming.

Defendants sought to establish a right of possession of the lands to avoid the results of their acts of trespass. The evidence fully sustains plaintiffs' petition. It was shown that the title of the land was in Mary Barrett who died in 1930. The plaintiffs, Patrick C. Barrett and Joseph Edward Barrett are named in her will as residuary legatees and executors of her estate. The land was worth $ 1,250.00 per year for grazing purposes; it was leased for that amount in the season of 1930 and 1931, but later reduced to $ 800.00 per year. James Barrett acquired a tax deed to the lands and made a lease thereof to Big Sandy Livestock Company. The James Barrett tax title was defective. Tax sale proceedings are strictly construed. Felt v. Schaub (Okla.) 272 P 830; Brewer v. Folsom Bros. 5 P.2d 283. The tax certificate was not issued in accordance with the statute. Section 2877 C. S. The sale was void. Penrose v. Cooper (Kan.) 80 P. 489; Grunstead v. Cooper (Kan.) 95 P. 401. The proceedings were governed by the statute in effect at the time. 37 Cyc. 1282, 1382, 1434-36; Ward v Huggins (Wash.) 36 P. 285. The tax deed is void if it omits recitals required by statute. 37 Cyc. 1434-35-36; Hale v. Sweet (Kan.) 53 P. 274; Lines v. Digges, 95 P. 341. Prior to the amendment of Section 2897 C. S. in 1929, there was no authority for the execution of a deed to the County by the Treasurer. A deed so given is void. Plaintiffs in their reply tendered payment of all delinquent taxes and interest and the amount thereof should be ascertained by the court. Clinton v. Elder, 40 Wyo. 350. The judgment below was erroneous and should be reversed.

For the defendants and respondents there were briefs and oral argument by Mr. T. S. Taliaferro, Jr., of Rock Springs, Wyoming.

The case of Felt v. Schaub (Okla.) 272 P. 830, was decided under an Oklahoma statute and is not in point. James Barrett purchased the land from the County and not at a tax sale, and acquired new title. 37 Cyc. 1388. The Wyoming case of Brewer v. Folsom Bros. (Wyo.) 5 P.2d 283, cited by plaintiffs is not in point. The tax sale adjournments were taken in accordance with the statute. The certificate of purchase referred to in Section 2882 C. S. did not apply to lands bid in by the County. Section 2879 C. S. was enacted in 1876, twenty-three years prior to the passing of the law authorizing counties to bid in lands at tax sales. The certificate referred to in Section 2882 C. S. has no reference to lands purchased by the County. Hiltscher v. Jones (N. M.) 170 P. 885. No money is paid where the county makes the purchase. No form of deed is prescribed for execution by the County where it resells lands purchased for taxes, hence the Kansas cases cited by plaintiff are not in point. The Commissioners followed the statutes in force in 1926 and in 1929 in disposing of the lands. The deed issued by the County Treasurer to the County is at least evidence of the sale. Lands so purchased are placed on a separate tax roll. Section 2895 C. S. The lands may be disposed of by the County Commissioners. Section 2896-2897 C. S. Provisions are made for redemption by original owner. Section 2897 C. S. The proceedings being legal, the defendant was entitled to a legal title. Gallash v. Willis (Mont.) 300 P. 570; Smart v. Peek (Cal.) 2 P. (2d.) 382; Hatchett v. Going (Okla.) 246 P. 1101; Weeks v. Merkle, 52 P. 929; Keller v. Hawk, 91 P. 778; Hill v. Turnverein, 187 P. 920; Lumber Co. v. County (Miss.) 124 So. 438; Neal v. Wilson (W. Va.) 92 S.E. 136. The case of Investment Company v. Mallin, 25 Wyo. 373, answers in the negative every material point made by plaintiffs' counsel at the trial or in his brief. The land vested in the County. Pace v. Wight (N. M.) 181 P. 434; Knight v. Fairless (N. M.) 169 P. 312. The land was county property when sold to James Barrett. Section 2896 C. S. The trial court properly sustained objections to plaintiffs' proof of damages. Bader v. Mills, 28 Wyo. 191. There was no proof of conspiracy on the part of defendants. In a suit to quiet title, the burden is upon the plaintiff. Davis v. Minnesota Baptists, 16 P. (2d.) 52; Davis v. Harrington (Kans.) 10 P. 532. The averments of the petition and reply of the plaintiffs are but conclusions. Western v. Meyers (Nebr.) 63 N.W. 117. The statute, Section 2891 C. S., provides in general that deeds executed by the Treasurer shall be in a prescribed form. Section 2897 C. S. provides for deeds to private purchasers. The redemption period provided by Section 2884 C. S. is extended by the purchaser's failure to follow the law in protecting title. Burns v. County Treasurer, 25 Wyo. 501. The requirements of the tax sale situation are vital in perfecting title. Points in the case of McCague v. Mallin, 25 Wyo. 373, urged by defendants are "obiter dicta." People v. Case (Mich.) 190 N.W. 289.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This case is before the court upon direct appeal from a judgment of the District Court of Sweetwater County. The appellants, as plaintiffs below, brought suit against the respondents, as defendants, their petition setting forth two alleged causes of action. Summarizing, the first of these states that Mary Barrett died on September 15, 1930, leaving, as a part of her estate, some 7,974 acres of land in the county aforesaid; that thereafter her will was admitted to probate and the plaintiffs, as executors thereof, were issued letters testamentary, and that they are also heirs at law and "sole legatees and distributees" of all her estate; that prior to her death, the said Mary Barrett owned and was in possession of the real estate above mentioned and that plaintiffs have succeeded to her rights therein as the sole owners thereof; that the defendants, the First National Bank of Green River, a national banking corporation whose place of business is at Green River, Wyoming, the Big Sandy Livestock Company, a Wyoming corporation, and James Barrett, each claim an interest in said real estate adverse to plaintiffs', said claims being without right and said defendants having no title or interest whatsoever in this property. The second cause of action sets forth an alleged trespass upon said real estate by said defendants, commencing in the months of December, 1930, and January, 1931, and continuing until about June, 1931, through driving a large number of sheep thereon to plaintiffs' damage. The petition prayed that defendants be required to set forth the nature of their claims, that these be adjudged invalid as against the plaintiffs' and that the latter be given judgment for $ 2500 damages on their second cause of action.

The answer of the First National Bank of Green River, aside from denials of the allegations of the petition setting up plaintiffs' interest in the premises, asserts a claim in said land by virtue of a mortgage given it thereon by its co-defendant James Barrett, and denies having any connection whatsoever with the alleged trespass pleaded by the plaintiffs.

The answer of the Big Sandy Livestock Company, denying generally the rights pleaded by plaintiffs in their first cause of action, asserts a lease ever since January 24, 1931, of all real estate aforesaid, as made to it by its co-defendant James Barrett who, it is alleged, was then in the absolute possession of said land; that on the date last mentioned, it went into possession of said lands and holds them under said lease, thereby claiming an interest therein. A general denial is interposed to plaintiffs' second cause of action.

The answer of James Barrett denying generally the rights alleged by the plaintiffs in their first and second causes of action, avers that the lands aforesaid were sold on November 1, 1926, to the County of Sweetwater, Wyoming, for taxes; that they then became the property of that county; that they were never redeemed from said tax sale and that, on January 24, 1931, Sweetwater County, for a stated valuable consideration, sold and deeded the lands to him and that he is now the owner thereof in fee by virtue of the deed of said county duly executed by its board of county commissioners. He admits that he leased said premises to the Big Sandy Livestock Company for a valuable consideration and "that said lease is still in full force and effect," this being averred as an exception to his allegation that "as to whether the defendants, Big Sandy Livestock Company and the First National Bank of Green River, claim an estate or interest in the said real estate, this defendant has no knowledge or information sufficient to form a belief, and, therefore, denies the same."

Replies were filed by the plaintiffs to each of these separate answers. The portions of the reply to the answer of James Barrett material to be considered are, briefly, denials of his ownership at any time of the property described in plaintiffs' petition, and denials of right to its possession at the time of the alleged trespass. It is admitted that he claims his interest in the land under a tax deed made and delivered by the county treasurer of Sweetwater County and a deed executed and delivered to him by the county commissioners of said county. It is admitted, also, that the aforesaid lands were subject to taxation by Sweetwater County for the year 1925 and...