Brewer v. Folsom Brothers Co.

• Decision Date: 24 November 1931
• Docket Number: 1697
• Parties: BREWER v. FOLSOM BROTHERS CO
• Court: Wyoming Supreme Court

5 P.2d 283

43 Wyo. 433

BREWER v. FOLSOM BROTHERS CO

No. 1697

Supreme Court of Wyoming

November 24, 1931

APPEAL from the District Court, Big Horn County; PERCY W. METZ Judge.

Action by Madeline Brewer, plaintiff, against Folsom Brothers Company and another, to recover taxes and ditch assessments paid, and the value of improvements placed on land, purchased from Big Horn County, theretofore struck off to said county at a tax sale for want of other bidders. The owner, having recovered possession in a former action in which purchaser made no claim for taxes or improvements, purchaser now seeks recovery thereof in equity. From a judgment for defendant plaintiff appeals.

Reversed and Remanded.

The cause was submitted for the appellants on the brief of William C. Snow, of Basin, Wyoming.

This is an action in rem to foreclose a tax lien and a lien under the occupying claimant's law. The petition did not state a cause of action. The payment of a tax, no matter by whom extinguishes the lien; the county had no lien to assign when deed issued. Cooley, (4th Ed.) Sec. 1258. The tax deed was issued November 2nd, 1927, and Madeline Brewer obtained possession the same month from one Jones who had occupied the land as a tenant. In February, 1928, Folsom Bros. Company commenced action against Brewer and her tenant to quiet title and to recover possession. In this action, Folsom Brothers Company were decreed right of possession. 6234 C. S. In present action Brewer claims a lien for taxes and improvements. 6241 C. S. Title was adjudicated in the first suit. Graham v. Culver, 3 Wyo. 650; Hennessy v. Ry. Co., 24 Wyo. 305; Cook v. Elmore, 27 Wyo. 163; Gage v. Eddy, 57 N.E. 1030. Statutes in rem to foreclose tax liens are not maintainable except there be a statute. Cooley on Taxation 4th Ed., Sec. 1400; Greenwood v. Adams, 80 Cal. 74; Pennock v. Douglas, (Nebr.) 42 A. S. R. 589; Joliet Co. v. Kiep, (Ill.) 12 Ann. Cas. 227. The rule of caveat emptor applies to tax purchasers. Cooley (4th) 1553. 2892 C. S. And purchaser will have no lien for amounts paid unless statute so provides. Croskery v. Busch, 74 N.W. 464; Greenwood v. Adams, supra; Blackwell v. Bank, (N. M.) 63 P. 43; Holland v. Hotchkiss, (Calif.) 123 P. 258. A tax deed is either valid or void. It confers no lien. Howland v. Hotchkiss, supra; Gage v. Eddy, supra. Taxation is a political function. Cooley (4th Ed.) 165; McHenry v. Downer, 47 P. 779; Preston v. Co., 183 F. 1; Cont. Ins. Co. v. Wood, (Mich.) 74 N.W. 656. Land may be sold for taxes only in the manner provided by law. 2858 C. S. Laws 1923, Ch. 70. Courts have no power to sell for taxes. 6018 C. S. Laws 1927, Ch. 37. There is no equitable right to recover taxes paid unless legally assessed. Holland v. Hotchkiss, supra; Gage v. Eddy, supra. In this case, there was no levy, therefore no tax. Cooley, (3rd Ed.) 547, 577; Rogers v. White, 35 N.W. 799; Harding v. Bader, 42 N.W. 942. The claim for drainage taxes is invalid. 1063 C. S. 1920; Laws 1923, Ch. 10. Arnott R. Folsom now holds the land as an innocent purchaser, and his title is good under ejectment. The court erred in including as a lien more than ordinary interest. Larson v. Peppard, (Mont.) 16 Ann. Cas. 800. The decree of the District Court should be reversed.

The cause was submitted for the respondents on the brief of Ernest J. Goppert, of Cody, Wyoming.

The petition stated a cause of action. 26 R. C. L. 436. Taxes are made perpetual liens against real estate. 2858 C. S. Laws 1923, Ch. 70. Sec. 985 C. S.; 973 C. S.; Laws 1925, Ch. 52. Fishel v. Merceir, 37 La. Ann. 356; Wheeler Co. v. Pates, (Wash.) 86 P. 625; Slocum v. Peterson, (Wash.) 227 P. 20. Interest of purchaser at tax sale remains a lien on the premises. Burgin v. Rutherford, (N. J.) 38 A. 854; Bank v. Jones, 17 A. 808; Strother v. Reilly, (Tenn.) 58 S.W. 332, 37 Cyc. 1152; Cooley, (4th Ed.) Vol. 3, Art. 1260, 1270 and 2963. A suit may be brought in equity to enforce tax liens. 37 Cyc. 1241, 1242, 1533, 1534. In many jurisdictions a statute lien exists for a balance due for improvements, made by an occupant in good faith. 31 C. J. 341; Grant v. Bartholomew, (Neb.) 78 N.W. 314; Merrill v. Ijams, (Nebr.) 79 N.W. 734. The doctrine of subrogation applies. Cooley, (4th Ed.) Art. 1271; Childs v. Smith, (Wash.) 99 P. 304; Downing v. Lucy, (Minn.) 141 N.W. 183; Parks v. Watson, (Neb.) 20 F. 763; Lee v. Newell, (Neb.) 147 N.W. 684; Auditor General v. Newman, (Mich.) 97 N.W. 703; Wyo. Assn. v. Mills Const. Co., 38 Wyo. 515, 269 P. 45. A quit claim deed will convey a tax lien. Glos. v. Mulcahy, (Ill.) 71 N.E. 629. Cooley, (4th Ed.) 1258. A tax lien is extinguished by payment. Cooley, (4th Ed.) 1258. There are authorities holding that a tax lien is not extinguished by a void or voidable sale. 37 Cyc. 1148, 1149; Rochford v. Fleming, (S. D.) 71 N.W. 317; Phelan v. City, (Calif.) 52 P. 38; Leavitt v. Bartholomew, (Neb.) 93 N.W. 856; Cooley, (4th Ed.) 1239. Appellants claim that this case is res adjudicata under the ejectment suit, citing 6234 C. S., which is in fact the section providing for quieting title. The ejectment sections are 6236-6237 C. S. No provision is made for a determination of occupying claimant's right in an ejectment action; that is a matter for an additional action. 6243 C. S.; 19 C. J. 1247; Weimer v. Porter, (Mich.) 4 N.W. 306, 37 Cyc. 1534; Stewart v. Corbin, 38 Iowa 571; Counts v. Kitchen, (Ky.) 7 S.W. 538. The statutes provide a method for foreclosing tax liens. 2889 C. S. Certain presumptions arise from a duly authenticated assessment roll and tax list, that in the absence of proof to the contrary, require the court to find that the taxes and assessments were lawfully levied. Cooley, (4th) 1017, 1073; 37 Cyc. 990, 1069, 1070; Washington Co. v. Jefferson, (Minn.) 28 N.W. 256; Inv. Co. v. Mallin, 25 Wyo. 373. Drainage taxes are governed by the same law. If the decree is valid as to either of defendants, it will not be disturbed. 22 Wyo. 427, 34 Wyo. 397. A change of ownership does not affect the lien. Cooley, (4th Ed.) 1238, 37 Cyc. 1145; Jacobs v. Co., (Mich.) 118 N.W. 921. The court below was correct in awarding respondent compensation for improvements and water assessments. 26 R. C. L. 441; Cooley, (4th Ed.) 1557; Bright v. Boyd, 2 Story 605; Elerick v. Reed, (Okla.) 240 P. 1045; Luton, Admr. v. Bradham, (N. C.) 53 L. R. A. 337. One holding under color of title such as a tax deed upon eviction is entitled to compensation for improvements. Parker v. Vinson, (S. D.) 77 N.W. 1023; Croskery v. Bush, (Mich.) 74 N.W. 464; Page v. Davis, (Neb.) 42 N.W. 875; Fish v. Blasser, (Ind.) 45 N.E. 63; Gilbreath v. Dilday, (Ill.) 38 N.E. 572. Any error in awarding interest has been waived not having been included in the assignment of error. Posvar v. Pierce, 37 Wyo. 509; Stine v. Schuneman, 39 Wyo. 476; Stockmans Loan Co. v. Johnson, 33 Wyo. 357, 240 P. 449.

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

OPINION

BLUME, Justice.

The taxes on the SW 1/4 of tract 97 in Sec. 8, T. 52 N., R. 96 in Big Horn County, Wyoming, were delinquent for the year 1924 and the land was struck off to the county as provided by law. On November 2, 1927, the county, pursuant to statutory authority, sold the land to Madeline Brewer, plaintiff in the case and respondent here. The purchase price was $ 2092.38, which included all the delinquent taxes against the land for the years 1923, 1924, 1925, 1926, and the taxes due for 1927. A deed was issued to the purchaser by the board of commissioners. Separate tax receipts were issued to the purchaser showing that she paid the taxes for the various years above mentioned. In the month of November, 1927, the tax purchaser, relying upon the validity of the tax deed, went into possession of the land, made various improvements thereon, and paid an irrigation ditch assessment in the spring of 1928. On February 13, 1928, Folsom Brothers Company, a corporation, the then owner of the land, brought an action for the recovery of the property and was successful therein, as shown by judgment entered in the case on July 9th, 1928. No claim was made in that action for taxes, ditch assessment or improvements above mentioned. Thereafter--the exact time not appearing--Arnott R. Folsom became the owner of the property. The present action was commenced in December, 1928, the plaintiff asking to recover the taxes and ditch assessment paid and the value of the improvements put on the land. Issues were duly joined in the case, and judgment was entered in favor of plaintiff for the amount claimed, and for a lien against the land. From the judgment the defendants have appealed.

1. A motion to dismiss was filed herein by the respondent on the ground that the abstract of record fails to show (1) an entry of the judgment in the case and (2) any service of the notice of appeal, and (3) fails to contain any assignments of error. The appellant, realizing that he had violated the court's rule in at least one respect, thereupon asked to be permitted to add the assignments of error to the abstract, and sent them to the clerk of this court. No correction in the abstract in other respects was made. Rule 37 of this court provides that the abstract of record "shall contain a brief statement of the contents of the pleadings, the judgment, the motion for a new trial, the assignments of error relied on, and such other parts of the record as may be essential." The respondent is, by the same rule permitted to file amendments to the abstract, and it is further provided that "in case of failure to comply with the provisions of this rule, the court may dismiss the case or tax costs as the right of the matter may require." In this state the original record comes to this court, and in this case shows no defects. The abstract of the...