Carter v. Thompson Realty Co.

Decision Date24 November 1942
Docket Number2225
Citation58 Wyo. 279,131 P.2d 297
PartiesCARTER v. THOMPSON REALTY CO
CourtWyoming Supreme Court

ERROR to District Court, Hot Springs County; P. W. METZ, Judge.

Action in the nature of ejectment by the Thompson Realty Company against C. Dana Carter. To review a judgment in favor of the plaintiff, the defendant brings error.

Affirmed.

For the plaintiff in error, there was a brief and oral argument by Lin I. Noble of Thermopolis.

Plaintiff in error seeks a review and reversal of a judgment rendered by the District Court of Hot Springs County, in favor of defendant in error and against plaintiff in error, involving a title to real estate, which judgment appears in the Bill of Exceptions. The petition of defendant in error contained two causes of action, one in ejectment and the other to quiet title. A demurrer to said petition was overruled and exception taken. The ruling of the court was erroneous. 51 C J. 230, Section 175. The first count of the petition alleges that plaintiff in error was in possession. Defendant in error fails to allege it was in possession by itself or tenant. The judgment was therefore erroneous. Sec. 89-3901, R. S. 1931; Baldwin v. McDonald, 24 Wyo. 108. The action was barred by limitation. Sec. 115-309, R. S. 1931; Beebe v Doster (Kan.) 14 P. 150; Electrolytic Copper Co. v Mines Corp. (Wyo.) 243 P. 126. The period within which the owner must bring his action must be reckoned from the date of sale for taxes, which would be July 11, 1932. Little v. Emmett Irrigation District (Ida.) 263 P 40. The Thompson Realty Company had a half dozen remedies which it might have pursued after July 11, 1932. State Commissioner v. Spanish Fork (Utah) 100 P.2d 575; McMullin v. Shields (Mont.) 29 P.2d 652; Osterholm v. Mining Company, 107 P. 499. No effort was made to redeem the property until more than five years after the date of sale. The law in force at the time of the sale governs. Barrett v. Barrett, 23 P.2d 857. Under the law existing at the time of the sale, the redemption period expired July 11, 1935. Defendant in error claims to have redeemed the property under the provisions of Chapter 70 of the Session Laws of 1937. There seems to be a conflict of authority as to the constitutionality of statutes such as Chapter 70, Session Laws 1937. Our Constitution requires uniformity of assessment. Article III, Section 27, Constitution. Plaintiff in error received a deed for said real estate from the County Commissioners on September 7, 1937. On September 11, 1937, defendant in error redeemed said property from the county, having in mind the provisions of Section 115-2329, R. S. 1931, that real property sold at tax sale may be redeemed at any time before the expiration of three years from the time of sale, and that the law in force at the time of sale shall govern. There is a serious doubt as to the constitutionality of Chapter 70, Session Laws of 1937. Under the law existing at the time of sale, the redemption period expired July 11, 1935, no matter whether the County or a private individual was the purchaser. This law of 1937 authorizes redemption by the payment of an amount equal to the delinquent tax only, including the amount for which said property was sold and subsequent delinquent taxes, exclusive of accumulated interest, penalty and costs, but limits the time for such redemption to January 31, 1938. It would therefore seem to be a local or special law, because it extinguishes the indebtedness due the state and county. Article III, Section 27, Constitution. A similar law was condemned by the Supreme Court of Montana. State v. Fischl, Treas. (Mont.) 20 P.2d 1057. The Montana Court cited and followed with approval a Texas decision involving a similar statute. Ollivier v. Houston, 54 S.W. 942; Sanderson v. Bateman (Mont.) 253 P. 1101; State v. Leslie (Mont.) 101 A. L. R. 1329. This court has held that a tax is a personal obligation of the party whose property is assessed for taxation. 61 C. J. 592. Section 115-2303 having provided that "Interest on unpaid taxes shall become delinquent and draw interest at the rate of fifteen per centum per annum until paid or collected by distress or sale * * *" how can it be said that it is not a debt of the state? It is therefore clear that Chapter 70 of the Session Laws of 1937 violates two provisions of the Constitution, viz: the one requiring uniformity of taxation, and that forbidding special laws extinguishing indebtedness due the county or state. However, if Chapter 70, Laws 1937 be approved as constitutional, let us consider its language. It provides for redemption from sales for delinquent taxes at any time prior to January 31, 1938, in cases where the county was the purchaser and is still the owner of said property or the certificate of purchase thereof. When defendant in error attempted to redeem the property on September 11, 1937, the county was not the owner thereof, for the reason that it had sold the property to Dr. Carter, plaintiff in error, on September 7, four days prior thereto. The County had lawful authority to sell the property at any time at public or private sale. It was not required to hold the property until January 1, 1938. Section 115-2342, R. S. 1931; Section 115-2342, Laws 1933. It is therefore clear under the law that redemption rights under the Act of 1937 must be exercised while the county is still the owner thereof. Attention is directed to the fact that defendant in error paid only the face of the tax for 1931. The law says that he must pay an amount equal to the delinquent taxes, including the amount for which the property was sold, and all subsequent delinquent taxes. The certificate is therefore void. In cases of this character, plaintiff must recover on the strength of his own title. Sidlo, Simmons, Day & Co. v. Phillips (Wyo.) 49 P.2d 243. Defendant in error failed to prove by competent evidence the allegations of its petition. The pleadings in this case disclose that plaintiff was an occupying claimant of the land in question by virtue of a tax sale conducted by the County Treasurer of Hot Springs County, on July 11, 1932, at which sale, the County became the purchaser and therefore sold the land to Dr. Carter. Under Section 89-3908, plaintiff in error was an occupying claimant, and as such claimant he filed a written request for a journal entry of his claim. It was the duty of the court to cause such a journal entry to be made. Section 89-3910, R. S. This was not done. The trial court erred in entering judgment in favor of defendant in error and it should be reversed and such further orders made herein as this court may deem necessary and proper.

For the defendant in error, there was a brief by Ingle and Ingle of Thermopolis, and oral argument by C. R. Ingle.

The action is one brought by Thompson Realty Company in the nature of ejectment, for recovery of mesne damages possession, and to remove a cloud from title, by the cancellation of a deed made by the County Commissioners to Dr. Carter, plaintiff in error. By mesne conveyances, the title passed from Althea T. Wheeler to defendant in error, who also holds a tax deed from the Treasurer of Hot Springs County. Althea T. Wheeler acquired title under a decree of distribution in probate that cannot be attacked collaterally. 2 Church Probate, pp. 1830, 1853, and cases cited. It is proper to join a cause of action in ejectment with a cause for a decree quieting title, 51 C. J. Section 171, p. 229, where both relate to the same parties and the same property. Kruenski v. Neuendorf, 74 N.W. 974; Keens v. Goslin, 38 N.W. 797, Session Laws of Wyoming, 1939, p. 57; Stock Growers Bank v. Newton, 22 P. 444; 3 Bancroft's Code Pleading, Section 1374; Pfister v. Dascey, 4 P. 393; Doyle v. Temple, 136 P. 103; 51 C. J. 183; Chesney v. Valley Livestock Co., 244 P. 216. The trial court did not err in overruling Carter's demurrer. The action was not barred by Section 115-309, R. S. 1931. Carter received no deed from the Commissioners until September, 1937, and he did not take possession until he received said deed. Thompson Realty Company could not bring a suit against Carter or the County Commissioners until one or the other asserted title. The six year limitation period did not commence to run until Carter received his deed in September, 1937. Davis v. Baptist Convention (Wyo.) 16 P.2d 151; 61 C. J. 1421, Electrolytic Copper v. Rambler Consol., 243 P. 126; Gallagher v. Head, 79 N.W. 387; LaRue v. King, 37 N.W. 374; Perry v. Marbury Lumber, 103 So. 580. As a matter of law, the Statute of Limitations did not begin to run until the tax deed received by the County was recorded, and in this case the tax deed to the County was not recorded. Emerson v. Valdez, 135 P. 136; Empire Ranch v. Langley, 127 P. 451; 61 C. J. 1422 and cases cited under note 75. No deed could be issued by the Treasurer to the County under Section 115-2343, R. S., until notice had been given and proof filed as required by statute. The only notice given in this case by the Treasurer was a notice stamped on the certificate. If this notice constitutes any notice at all, which we do not concede, it fixed January 1, 1936 as the time within which the Thompson Realty Company might redeem. Burns v. State, 173 P. 55; Barrett v. Barrett, 23 P.2d 861; 61 C. J. 1335 and cases cited. The signing and sealing of the deed by the Treasurer could not affect the title until its delivery and recording. David v. Whitehead, 79 P. 21. An admission in a complaint that the Treasurer's deed had been lost and that its contents could not be proven is fatal. In order to establish a list instrument, the substance of its contents must be averred and proven. 37 C. J. 257. The commissioners had no authority to sell the property to Dr. Carter until the Treasurer's deed had been...

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14 cases
  • Ryan v. State
    • United States
    • Wyoming Supreme Court
    • October 8, 1999
    ...that would enable the court intelligently to determine the intention of the lawmaking body. Id. (quoting Carter v. Thompson Realty Company, 58 Wyo. 279, 291, 131 P.2d 297, 299 (1942)). Ryan contends that Wyo. Stat. Ann. § 7-13-201 requires that the district court establish a maximum and min......
  • Parker Land and Cattle Co. v. Wyoming Game and Fish Com'n
    • United States
    • Wyoming Supreme Court
    • January 22, 1993
    ...circumstances that would enable the court intelligently to determine the intention of the lawmaking body. Carter v. Thompson Realty Co., 58 Wyo. 279, 291, 131 P.2d 297, 299 (1942); see also, State ex rel. Motor Vehicle Div. v. Holtz, 674 P.2d 732, 736 (Wyo.1983). "Knowledge of the settled p......
  • Basin Elec. Power Co-op. v. State Bd. of Control
    • United States
    • Wyoming Supreme Court
    • April 20, 1978
    ...policy of the state, the conclusions of the law and all other prior and contemporaneous facts and circumstances. Carter v. Thompson Realty Co., 58 Wyo. 279, 131 P.2d 297. " . . . Beneficial use shall be the basis, the measure and the limit of the right to use water at all times, not exceedi......
  • Meyer v. Fanning (In re Estate of Meyer)
    • United States
    • Wyoming Supreme Court
    • January 20, 2016
    ...lawmaking body.Parker Land & Cattle Co. [v. Game & Fish Comm'n, 845 P.2d 1040,] 1044[ (Wyo.1993) ] (quoting Carter v. Thompson Realty Co., 58 Wyo. 279, 131 P.2d 297, 299 (1942)).Id. at ¶ 18, 31 P.3d at 1249; see also 2A Norman J. Singer & J.D. Shambie Singer, Sutherland on Statutes and Stat......
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