Burns v. State

• Citation: 25 Wyo. 491,173 P. 55
• Decision Date: 28 May 1918
• Docket Number: 883
• Parties: BURNS v. STATE
• Court: United States State Supreme Court of Wyoming

173 P. 55

25 Wyo. 491

BURNS v. STATE

No. 883

Supreme Court of Wyoming

May 28, 1918

Rehearing Denied 25 Wyo. 491 at 502.

ERROR to District Court, Fremont County; HON. CHARLES E. WINTER Judge.

Mandamus on the relation of Ralph E. Allen against Earl Burns, as Treasurer of Fremont County, Wyoming. Writ issued and respondent brings error.

Reversed.

P. B Coolidge, for plaintiff in error.

The case apparently hinges upon the construction of Section 2433, Comp. Stats., plaintiff in error contending that the right of redemption exists up to the date of the issuance of the tax deed, the defendant in error contending that the right to redeem expires three years after the date of tax sale, although the holder of the tax certificate neglects to advertise and make application for tax deed until after the expiration of the three years. The statute as originally enacted required the purchaser to advertise three months prior to the expiration of the redemption period, and failing to do so he lost his rights. The statute was amended to give the purchaser a period of two years after the expiration of the three-year period following the date of sale within which to advertise. If it was not the intention to extend the period of redemption by this amendment, there would be no object in requiring the certificate holder to advertise at all. The character of the notice required by the original law when compared with that required by the amendment indicates the intention of the Legislature to extend the redemption period. Statutes must be construed according to the clear legislative intent and so that all parts may stand and be given effect, if possible. Statutes relating to the acquisition of tax titles are construed most strictly against the holder of the certificate in cases of ambiguity.

O. N. Gibson, for defendant in error.

Two fundamental propositions are presented, viz.: (1st) Where the person in whose name the land was assessed cannot upon diligent inquiry be found in the county and where the premises are in the occupancy of the applicant, is the statutory notice required, and (2nd) does the failure to give the statutory notice within the three-year redemption period automatically extend that period until notice is given and the deed delivered? Redemption must conform to statutory requirements. (Jaggard on Taxation, p. 488.) The right to redeem is purely statutory. (Black, Tax Titles, 350 (2nd Ed.) Courts cannot extend the time or make exceptions not made by the statute. (Kelley v. Sanders, 99 U.S. 441; Lynch v. Burt, 67 C. C. A. 317, 132 F. 439.) If the proceedings have been regular, the owner is limited to the period fixed by statute within which to redeem. (White Pine Mfg. Co. v. Moery, 19 Idaho 49, 112 P. 674, 1, c. 676; Pearson v. Robinson, 44 Iowa 413; Beggs v. Robinson, 44 Iowa 413; Beggs v. Paine, 15 N.D. 436, 109 N.W. 322; McMillan v. Hogan, 129 N.C. 314, 40 S.E. 63; Levy v. Newman, 130 N.Y. 11, 28 N.E. 660; Dumphy v. Hilton, 121 Mich. 315, 80 N.W. 1; Quinn v. Kinney, 47 Cal. 147.) The occupant in the present case was the purchaser, hence the service of notice would have been an idle formality. The circumstances dispensed with the need of notice to the occupant, but in no way enlarges the rights of the non-resident owner. Since no notice was required, failure to give it within three years could not operate to extend the redemption period. Failure to give notice does not automatically extend the redemption period until notice is given and there is nothing in the provisions of Sections 2428, 2432 and 2433, Comp. Stats., indicating the contrary. Section 2433 expressly gives the purchaser two years within which to give notice and make application for deed "after the expiration of the period of redemption." But it is contended that this provision should be read three years from the date of tax sale. But the language employed indicates that it was the intention of the Legislature that the redemption period should expire absolutely in three years from the date of sale. The two-year period allowed the purchaser for advertising was apparently for the relief of tax certificate holders, since many valid objections might be urged to the issuance of a deed other than the existing right to redeem. For example, the validity of the tax levy; that the tax had been paid; that sale had not been advertised; that applicant was not the rightful purchaser or assignee of the purchaser, or that purchaser had conveyed his right away; that the sale did not take place at the time alleged, or that the property had been redeemed. The state has power to sell land for taxes absolutely; courts cannot extend the time or make extensions not made by the statute. (Kelley v. Sanders, 99 U.S. 441; White Pine Co. v. Moery, supra.)

T. S. Taliaferro, Jr., amicus curiae.

The mere averment that the purchaser was in possession and occupancy of the property at the time of the expiration of the redemption period is not an averment of lawful possession. Service made by the purchaser upon himself is not a compliance with the statute and not in good faith. (Oscanyon v. Arms Co., 103 U.S. 261.) The allegations of the petition do not show a compliance with Section 2433, Comp. Stats. He could acquire no adverse title by trespassing upon property sold for taxes. (Continental Trust Co. v. Mfg. Co., 222 F. 707.) The amendment of the laws as appears in Section 2433, though somewhat involved, clearly indicates that it was the intention of the Legislature to extend the period of redemption until the notice required by the original section had been given, and this notice, among other things, must state when the time of redemption will expire, all relating to the future. This court in construing the original section in Mathews v. Nefsy, 13 Wyo. 472, held that there was no authority for the issuance of a tax deed until a lawful notice had been published and recognized; that the Act of 1901 had extended the time for giving notice. The petition does not state facts sufficient to constitute a cause of action. It is not shown that all occupants of the land were served with notice. Relator was one of the occupants and no service was had upon him, because it is shown that notice was not given the owner before the expiration of the redemption period and because the petition upon its face shows that the owner of the land redeemed it within the time allowed by statute.

O. N. Gibson, replying to amicus curiae.

The amicus curiae having suggested that he be permitted to file an original demurrer in this court apparently assumes that his request has been granted and proceeds to argue a demurrer to the petition of plaintiff below. Trespass is charged and fraud is intimated by his argument. The petition follows the statute and the inferences are entirely gratuitous and have no discernible connection with the argument. Whether a tenant may acquire a tax title as against his landlord is not a question involved in this case. It is apparently contended that the applicant for a tax deed must serve notice upon himself that he himself holds a certificate of tax sale covering the premises occupied by himself and that he intends to make application on a day certain to obtain a tax deed therefor. How would a man go about to serve a notice on himself? Laws should receive a sensible construction. (United States v. Kirby, 7 Wallace, 482, 19 L.Ed. 278.) The operation of a statute may be restrained within narrower limits than its words import, where it is intended that the literal meaning of its language would extend to cases which the Legislature never designed to include in it. (Brewer v. Blougher, 14 Peters, 178, 10 L.Ed. 408.)

BEARD, JUSTICE. POTTER, C. J., and BLYDENBURGH, J., concur.

OPINION

BEARD, JUSTICE.

In this case the defendant in error, Allen, applied to the District Court of Fremont County for a writ of mandamus to be directed to the plaintiff in error as treasurer of said county requiring and commanding him to issue and deliver to said Allen a tax deed to a certain lot in the town of Riverton in said county. An alternative writ was issued and served, and plaintiff in error answered, to which answer a general demurrer was interposed. The demurrer was sustained and the treasurer electing to stand upon his answer, a peremptory writ was issued and judgment rendered against him for costs. He brings error.

Briefly stated, the facts alleged in the petition are that the lot was sold at tax sale July 1, 1911, for the taxes of 1910, and was purchased at said sale by one Huffield, who prior to July 1, 1914, assigned the certificate of purchase to Allen. That at the expiration of the period of redemption Allen was, and ever since has been, in the actual possession and occupancy of the lot, but during none of said time could L. D. Borden, in whose name the lot was taxed in the year 1910, be, upon diligent inquiry, found in said county. That after the expiration of the period of redemption aforesaid, he (Allen) duly published notice according to law that he would on November 1, 1914, make application to the treasurer for a tax deed to said lot. That on said date he submitted to the treasurer a copy of said notice with due proof of publication and tendered the fee for a deed and demanded the same. That the treasurer wrongfully refused to issue and deliver such deed to him.

The answer admitted the allegations of the petition with the exception of the allegation that the refusal to issue the deed was wrongful; and alleged that he rightfully refused to do so for the reason that on August 8, 1914 after the first publication of said notice, the said L. D. Borden, the owner of said lot, paid to him the full amount necessary to redeem said lot from said tax sale, which sum he received and accepted, and...