Board of County Com'rs. of Big Horn County v. Brewer

• Decision Date: 24 November 1936
• Docket Number: 1966
• Citation: 62 P.2d 685,50 Wyo. 419
• Parties: BOARD OF COUNTY COM'RS. OF BIG HORN COUNTY, ET AL. v. BREWER
• Court: Wyoming Supreme Court

62 P.2d 685

50 Wyo. 419

BOARD OF COUNTY COM'RS. OF BIG HORN COUNTY, ET AL. v. BREWER

No. 1966

Supreme Court of Wyoming

November 24, 1936

ERROR to the District Court of Big Horn County; P. W. METZ, Judge.

Action by Madeline Brewer against the Board of County Commissioners of Big Horn County and another. To review a judgment for plaintiff, defendants bring error.

Reversed with instructions.

For the plaintiffs in error, the cause was submitted on the brief of Thos. M. Hyde and C. A. Zaring of Basin.

This action was brought by Madeline Brewer to recover money paid to the county on its resale of tax title, which proved to be invalid and also to recover from the county interest on the money she had paid for the tax deed. The answer admitted the execution of the deed and as a second defense alleged that the owner of the land had commenced an action in ejectment against plaintiff, and she had a good defense if properly interposed, and by her failure to do so, judgment was rendered against her for possession. It was further alleged that it was her duty to interpose an equitable defense in the ejectment suit, and by reason of her laches and negligence in properly defending said action, she was estopped and precluded from prosecuting her action herein. A third defense alleged was that at the time of the sale of the lands to plaintiff, tax assessments against said lands amounted to the sum of $ 540.35, which was the amount realized by defendant county, and the sale of the purchase price to-wit: $ 1552.03 was paid to Bench Canal Drainage District, due for delinquent drainage assessments. Plaintiff demurred to the second and third defenses in defendant's answer, which demurrer was sustained, and the cause was tried upon the first defense which was in effect a general denial. Errors assigned for the reversal of this case are: (1) The judgment is contrary to law and not sustained by the evidence. (2) The court erred in rendering judgment for plaintiff. (3) The court erred in failing to render judgment for defendants. (4) The court erred in overruling plaintiffs' motion for a new trial. (5) The court erred in sustaining defendant's demurrer to the second and third defenses of defendant's answer. The defendant in error seeks to recover in this action under Section 115-2338, R. S., providing for indemnification when treasurer makes unlawful sales of land for delinquent taxes. The section does not apply to resales of tax titles. There was no legislation on the subject of such sales until 1899. There is no provision in our statutes for indemnification of persons who purchase lands direct from the county after the county has acquired title thereto, and the rule of caveat emptor applies. 61 C. J. 1861, 25 R. C. L. 435. There is no warranty in a sale by a county of land acquired by it at a tax sale. 61 C. J. 330. The deed here involved does not contain any suggestion of warranty of title. See Shelton v. Klickitat County, 277 P. 839, also Schuman v Board of County Commissioners, 21 P.2d 40; Wilson v Salt Lake Corporation, 194 P. 125. Defendant in error is estopped by her laches and negligence in failing to defend against the ejectment suit of Folsom Bros. Co. v. Brewer, 43 Wyoming 433; Easton v. Schofield, 69 N.W. 326. Moreover, all of the purchase price paid by defendant in error, except $ 540.35, was disbursed by the treasurer for the payment of drainage liens. The judgment of the district court should be reversed and judgment entered by this court in favor of plaintiffs in error.

For the defendant in error, the cause was submitted on the brief of Chas. L. Brome of Basin.

The deed executed and delivered to defendant in error was void, for the reason that no levy of taxes had been made against the land. Said omission was a clear violation of Section 2787, C. S. 1920, amended by Session Laws 1923, page 91. An attempt to make a record of levy in 1930 was void. 61 C. J. 572, 573 and 574. The doctrine of caveat emptor does not apply. Clapp v. Pinegrove Township, 138 Pa. 35; Barden v. County, 33 Wis. 445; 31 L.R.A. (L.R.A.) 1144. Defendant in error was entitled to recover. Section 115-2338, R. S. 1931. The statutes applicable in 1924 to this transaction were Sections 2892, 2894, 2895, 2896, 2897 and 2899, C. S. 1920. McCague Investment Company v. Mallin, 25 Wyo. 373, 392. It is clear that the legislature in the enactment of Section 2892, C. S. plainly intended to extend the right of indemnity to all purchasers of illegal tax sales. 25 R. C. L. 1052, 1063. The Oakland statute considered in Schuman v. Board, 21 P.2d 40, differs in language from the Wyoming statute above referred to. The case of Wilson v. Corporation, cited in brief of appellant in error involved a Utah statute, applying solely to a refund of taxes erroneously paid by the taxpayer, and not reimbursement of purchasers at tax sale. Defendant in error was not required to defend against the action of Folsom Bros. Company, 26 R. C. L. 440, 441; 61 C. J. 1410. The case of Brewer v. Folsom Bros. Company, 43 Wyoming 433, is not in point, since the court there assumed the existence of a legal levy. The case of Easton v. Schofield, 69 N.W. 326, cited by plaintiff in error is not applicable to the facts in the present case. Reference made in the brief of plaintiff in error to $ 1552.03 of the purchase price being turned over to the Bench Canal Drainage District is immaterial. The sustaining of a demurrer to said defense was proper since defendant in error had no control over the distribution of the money paid and is not chargeable with the voluntary and illegal disbursements of the proceeds of the purchase price by the county. Disposition of said proceeds is governed by Section 2899, C. S. 1920. County Commissioners have no connection with the collection of drainage district taxes. Section 122-866, R. S. 1931.

Motion to Dismiss

Defendant in error has moved for the dismissal of the error proceedings herein, on the ground that said proceedings were filed out of time. We cite Smith Drug Company v. Casper Drug Company, 5 Wyo. 510; Morgan v. State, 26 Wyo. 212; Brooks v. State, 29 Wyo. 114; Schmidt v. Bank of Newcastle, 29 Wyo. 260; Fried v. Guiberson, 30 Wyo. 150; Jones v. Parker, 38 Wyo. 26. In White v. State, 41 Wyo. 256, it was held that the trial court, after overruling motion for new trial and allowing sixty days extension in which to prepare bill of exceptions, can allow no further extension. One hundred fifty-two (152) days elapsed in this cause from the date of the entry of the order overruling the motion for new trial. It would seem that this is jurisdictional and that this court is without jurisdiction in the matter of this appeal.

Thomas M. Hyde and C. A. Zaring in reply.

The showing made in this case by counsel for plaintiff in error established the fact that the delay in presenting the bills of exceptions to the trial judge, was caused by the negligence and failure of the court reporter, and the county attorney used diligence and did everything in his power to have the bill of exceptions prepared in time by the court reporter. Reference is made to the case of Love v. Turner, 56 S.E. 232. The case of In re Austin's Estate, Loucks v. Austin, 35 Wyo. 176, lays down the rule that we think should obtain in the case at bar. This court had occasion to pass upon the circumstances mentioned in the second defense herein, in 43 Wyo. 433. The record shows conclusively that every possible effort was made to comply with the statute covering the limit of time permitted within which to file a bill of exceptions.

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

OPINION

RINER, Justice.

This case is here by proceedings in error to review a judgment of the district court of Big Horn County against the plaintiffs in error, the Board of County Commissioners of Big Horn County, Wyoming, and Big Horn County, Wyoming, and in favor of Madeline Brewer, the defendant in error.

The trial of the action below was had before the court without a jury and the judgment aforesaid was rendered March 1, 1935. A motion for a new trial was filed by the unsuccessful parties, which was overruled May 23rd following. Sundry extension orders were made from time to time by the presiding judge for the preparation of a bill of exceptions to be filed in the cause. A bill of exceptions was not, however, presented to the judge for allowance until the 7th day of November, 1935.

The defendant in error has asked us to dismiss the cause in this court by her motion filed for that purpose. She assigns as reasons therefor that the bill of exceptions was not presented to the judge who tried the case within 120 days from the time of the entry of the order overruling the motion for a new trial. The plaintiffs in error resist the motion on two grounds. They say first that it was through no fault of theirs--as they undertake to show by affidavit--but through the inability of the court reporter to supply the transcript that the bill was not presented within the period mentioned.

Section 89-4701 provides.

"The party objecting to the decision must except at the time the decision is made, and shall have sixty days from and after the date of the judgment, decree or final order in the case within which to reduce the exception to writing and present the same to the court or judge for allowance. If within said sixty days the party excepting shall make it satisfactorily to appear to the court or judge authorized to allow the bill of exceptions that the party will be unavoidably prevented from presenting the bill within said time, the court or judge by written order may extend said time, but not to exceed sixty additional days."

The significant language in the statute just quoted is the positive prohibition contained in the...