Booth v. Cooper

• Decision Date: 13 September 1912
• Parties: W. T. BOOTH, Respondent and Appellant, v. C. W. COOPER, Appellant and Respondent
• Court: Idaho Supreme Court

126 P. 776

22 Idaho 451

W. T. BOOTH, Respondent and Appellant, v. C. W. COOPER, Appellant and Respondent

Supreme Court of Idaho

September 13, 1912

QUIETING TITLE-ASSESSMENT OF TAXES-DESCRIPTION OF PROPERTY-DEFECTIVE TAX TITLE-VALIDITY OF.

(Syllabus by the court.)

1. Where lots were assessed as being in "Block 13, South Boise," and the plat of South Boise on file in the recorder's office contains no block 13, and where said lots were not in South Boise but were in "South Boise First Subdivision," as shown on the plat of South Boise First Subdivision, such description is so indefinite and uncertain as to invalidate said assessment, and a tax sale and assessor's deed in pursuance thereof does not convey the title to such lots.

2. The payment of subsequent assessments cannot correct a totally invalid and void description of the land assessed.

3. Where certain lots are described by number and block and are designated as being in "South Boise, Londoner's Addition," when in fact they were in "Londoner's First Subdivision," such description is not so defective as to make the assessment void, as said description indicates that said lots as assessed were in the vicinity of South Boise and in Londoner's Addition or Subdivision.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. John F. MacLane, Judge.

Action to quiet title to certain real estate. Judgment quieting title to a part of such real estate in plaintiff and part in defendant. Affirmed.

Affirmed.

Edgar Wilson, Fremont Wood and Dean Driscoll, for Plaintiff and Appellant.

"A deed in which the description does not apply to the property sold is not a deed to the property, whatever may have been the intent of the parties in making it." (Ozee v City of Henrietta, 90 Tex. 334, 38 S.W. 768.)

In such proceedings the provisions of the statute should be strictly followed. (Warden v. Broome, 9 Cal. 622, 50 P. 761.)

The description in the certificate of sale and the deed, and indeed throughout the entire proceedings, must be identically the same as that appearing on the original assessment-roll. (Quivey v. Lawrence, 1 Idaho 313; 1 Blackwell on Tax Titles, sec. 224.)

"A tax deed must describe the land conveyed with such reasonable certainty as to identify it without the aid of extrinsic facts." (27 Am. & Eng. Ency. of Law, 970; Cooley on Taxation, 2d ed., p. 404; Tallman v. White, 2 N.Y 66; Curtis v. Supervisors, 22 Wis. 167; Woodall v. Edward, 83 Ark. 334, 104 S.W. 128; Ontario Land Co. v. Wilfong, 162 F. 99; Miller v. Lundstrom, 45 Fla. 473, 33 So. 521; Sanford v. People, 102 Ill. 374.)

"It is not sufficient that a similar description, in a contract or conveyance between individuals, might be shown by parol evidence to have been intended for particular premises. The description must be certain of itself, and not such as to require evidence aliunde to render it certain." (Keane v. Cannovan, 21 Cal. 297, 82 Am. Dec. 738; Commercial Savings Bank v. Schlitz, 6 Cal.App. 174 91 P. 751; Bosworth v. Danzien, 25 Cal. 297, 300; People v. Mahoney, 55 Cal. 286.)

Where land is assessed by lots and blocks, and that only, reference must be had to some recorded map to make the description sufficient. (Cadwalder v. Nash, 73 Cal. 43, 14 P. 386; Labs v. Cooper, 107 Cal. 656, 40 P. 1042; Miller v. Williams, 135 Cal. 183, 67 P. 788; Best v. Wohlford, 144 Cal. 733, 78 P. 293; Baird v. Monroe, 150 Cal. 560, 89 P. 352; Wright v. Fox, 150 Cal. 680, 89 P. 832; Fox v. Townsend, 152 Cal. 51, 91 P. 1004, 1007; Chapman v. Zobelein, 152 Cal. 216, 92 P. 188; Houghton v. Kern Valley Bank, 157 Cal. 289, 107 P. 113; McLauchlan v. Bonynge, 15 Cal.App. 239, 114 P. 798.)

Even though sufficient to notify the owner and the public, the description must identify the property. (Palomares Land Co. v. Los Angeles Co., 146 Cal. 530, 80 P. 931.)

Griffiths & Griffiths, for Defendant and Appellant.

"The office of a description is not to identify the land, but to furnish the means of an identification, and a deed will not be declared void if the land can, with any reasonable degree of certainty, be identified from the description aided by extrinsic evidence." (Lara v. Peterson, 56 Wash. 70, 105 P. 160; Goodrow v. Stober, 80 Kan. 597, 102 P. 1089; Herod v. Carter, 81 Kan. 236, 106 P. 32.)

No informality in the assessment, or mistakes in relation to the ownership, will render an assessment or tax proceeding void or voidable, or affect the sale, and a substantial compliance with the provisions of the law is all that is required. (Co-operative Sav. & Loan Assn. v. Green, 5 Idaho 660, 51 P. 770.)

No other plat was of record to which these names could by any possibility apply, and there were no other tracts of land which could, by any possibility, have answered these descriptions. Therefore, the errors were unimportant and the tax proceedings and tax deeds valid. (Bank of Lemoore v. Fulgham, 151 Cal. 234, 90 P. 936; Fox v. Wright, 152 Cal. 59, 91 P. 1005; Carson v. Platt, 76 Kan. 636, 92 P. 705; Bacon v. Rice, 14 Idaho 107, 93 P. 511; Best v. Wohlford, 153 Cal. 17, 94 P. 98; Stevens v. Doohen, 50 Wash. 145, 96 P. 1032; Glenn v. Stewart, 78 Kan. 605, 97 P. 863; Abel v. Swain, 12 Ariz. 421, 100 P. 831; Halbouer v. Cuenin, 45 Colo. 507, 101 P. 763; Gunn v. Bromer, 81 Kan. 242, 105 P. 702; Lecompte v. Smith, 82 Kan. 543, 108 P. 810; Stanton v. Hotchkiss, 157 Cal. 652, 108 P. 864; Nesbit v. Bearman, 83 Kan. 122, 109 P. 1085; Griggs v. Hartzoke, 13 Cal.App. 429, 109 P. 1104; Plummer v. Gibson (Kan.), 116 P. 618.)

The rule set forth in the Bacon case was commented upon in the later cases of Stewart v. White, 19 Idaho 60, 112 P. 677, and McGowan v. Elder, 19 Idaho 153, 113 P. 102, and the reasons and rules were approved and confirmed.

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

OPINION

SULLIVAN, J.

This action was commenced by the plaintiff Booth to quiet title to lots 1 to 10, inclusive, in block 13, South Boise First Subdivision, and lots 1, 2, 3 and 4, in block 37, and lots 25 to 32, inclusive, in block 40, Londoner's First Subdivision, as said lots are described in the respective plats filed in the recorder's office of Ada county. The defendant Cooper answered and claimed title to all of said lots under tax deeds acquired by reason of the nonpayment of delinquent taxes assessed against said lots.

The cause was tried by the court and findings were made quieting the title in the plaintiff Booth to said lots 1 to 10, inclusive, in block 13, South Boise First Subdivision, and quieting the title in the defendant Cooper to said lots above described in blocks 37 and 40, Londoner's First Subdivision. The plaintiff Booth appeals from that part of the decree quieting the title to said lots in blocks 37 and 40, Londoner's First Subdivision, in Cooper, and the defendant Cooper appeals from that part of the decree which quiets title to lots 1 to 10, inclusive, in block 13, South Boise First Subdivision, in Booth.

The appeals are from the judgment on the judgment-roll alone. No part of the evidence is contained in the record. The facts are to be taken as found in the findings of the trial court.

(1) It appears from said findings that said lots 1 to 10, inclusive, block 13, were assessed in 1893, to Henry Wymer as owner, as being in South Boise in Ada county. Said taxes were not paid and the lots were sold for that year's taxes under the description given them on the assessment-roll as above stated. A tax certificate was issued therefor to C. W. Cooper and a tax deed thereafter executed by the assessor and tax collector to Cooper, describing the lots as above indicated. The court found that there was no South Boise in Ada county at the time said assessment was made, but that there was land subdivided and described upon a plat filed in said recorder's office as "South Boise," but said plat did not contain any block numbered 13; that there was filed in the recorder's office of Ada county a platted tract of land marked on the plat as "South Boise First Subdivision," and that such plat did not include any part of South Boise as platted and subdivided as "South Boise," and upon the findings made in regard to said lots numbered from 1 to 10, inclusive, in said block 13, the court found as a conclusion of law that Booth was entitled to a judgment and decree quieting title in himself as against Cooper to said lots in block 13 in "South Boise First Subdivision," and that conclusion and decree were based upon the proposition that said assessment of said lots was indefinite and uncertain, and for that reason was not a sufficient description of said lots to convey any title thereto under said tax deed.

It appears that there were at least three plats filed of lands that had been platted in what is now known as South Boise. One plat was named "South Boise" and contained certain lands subdivided. That plat did not contain a block numbered 13. Another tract of land was platted as "South Boise First Subdivision," which plat did not include any part of the land platted as "South Boise." A third plat was designated as "Londoner's First Subdivision," and contained none of the land included in either of the other plats.

Said lots from 1 to 10, inclusive, in said block 13, were in "South Boise First Subdivision" and not in a part of the land platted as "South Boise"; hence as said lots were not in the "South Boise" tract, but were assessed as being a part of that tract, the description is clearly insufficient to describe said land either for taxing purposes or for conveying any title thereto by such description. It is as clearly defective and incorrect as it would be to describe a forty-acre tract of land as being in section 10 when in fact it was in section 5. Said lots being assessed...