Clinton v. Elder

Decision Date28 May 1929
Docket Number1537
PartiesCLINTON v. ELDER [*]
CourtWyoming Supreme Court

Rehearing Denied October 1, 1929, Reported at: 40 Wyo 350 at 364.

APPEAL from District Court, Goshen County; CYRUS O. BROWN, Judge.

Action by Jennie Aldred Clinton against William J. Elder and another. Judgment for plaintiff, and defendants appeal.

Conditionally Affirmed, Modified, and Remanded with Directions.

For the appellant there was a brief by J. M. Roushar of Torrington and Mothershead and York of Scottsbluff, Nebr., and oral argument by Mr. Roushar and Mr. York.

The court erred in sustaining plaintiff's demurrer to the first division of defendant's answer; the title remained in the government until patent issued and plaintiff had no cause of action. Section 4674 and 4676 C. S. He could merely prove a possessory right of action. Facts alleged in the complaint must stand as true upon general demurrer. McLaren vs. Fleischer, 185 P. 967. Plaintiff claims title under a warranty deed from Leason, of lands the title of which stands in the government. The court was without jurisdiction. Bank v. Steinhoff, 11 Wyo. 290; Kennedy v. Dickie, (Mont.) 85 P. 982; 13 Peters 516; Williams v. Newman, 257 F. 353. Compliance with land laws are imperative to secure patent. Leonard v Lennox, 181 F. 760; Comos Exploration Co. v. Oil Co., 190 U.S. 301. Courts will take judicial notice of rules of the land department. Caha v. U.S. 152 U.S 211-221. A purchaser at an invalid tax sale has a lien for taxes and is subrogated to the rights of the public. Weston v. Meyers, 63 N.W. 117; Green v. Hellman, 86 N.W. 912. Irregularities in the service of notice are insufficient to invalidate a tax sale. 2881 C. S. McCague v. Mallin, 25 Wyo. 376; 2889 C. S. was complied with by service of notice. An officer is not allowed to impeach his return. 22 R. C. L. 474. In re Conservancy Dist., (N. M.) 242 P. 683. In the absence of agreement to the contrary, the duty rests upon the land owner to pay taxes during the term of a lease. 36 R. C. L. 113; Weischelbaum v. Curlett, 27 A. R. 204. Evidence of an oral agreement was properly stricken out. 4719 C. S. The court erred in overruling the motion of defendant Elder to dismiss.

For the respondent there was a brief by John L. Sawyer of Torrington, and Kinkead and Pearson of Cheyenne, and oral argument by Mr. Kinkead.

A joint answer insufficient as to one is demurrable. Dietsch v. Wiggins, 1 Colo. 299; Fairbanks v. Warrum, (Ind. ) 104 N.E. 983; McCreary v. Jones, (Ala.) 11 So. 600; Mettler v. Co., (Mont.) 219 P. 243; Stires v. Kindell, 208 Ill.App. 610; Greenawalt v. County, 16 Wyo. 226; Wilson v. Co., 22 Wyo. 427; McIntosh v. Wales, 21 Wyo. 397; Wilson v. Co., 22 Wyo. 441; Meador v. Blonde, 34 Wyo. 397; Co. v. Peterson, 18 Wyo. 402. The party appealing is not entitled to urge any error effecting another party only. State v. Longpre, 35 Wyo. 482; Dukek v. Gross, 36 Wyo. 30. Respondent's title was upon a homestead entry. At the time the notice was published, there was no law authorizing the assignment of a homestead entry. The act of congress authorizing assignments was enacted June 23, 1910; 36 Stat. 592, relating to reclamation projects. Only the status of the parties is involved here, a status which the government recognizes, and the government is not interested in the determination of this suit. Where the land department acts without authority, it will be disregarded by the state courts. Wolbol v. Steinhoff, 25 Wyo. 227. Only the possessory rights of parties may be litigated where the permanent title remains in the government. 15 Cyc. 39; Cornell v. Gobin, (Nev.) 238 P. 344; Manuel v. Wolf, 152 U.S. 505; McMillan v. Leonard, (Colo.) 34 P. 681; Larrison v. Wilbur, (N. D.) 47 N.W. 381.

A tenant who has agreed to pay taxes cannot acquire title to the leasehold adverse to his landlord by purchasing at a tax sale. Oppenheimer v. Levi, (Md.) 54 A. 74; Bertram v. Cook, 32 Mich. 518; Cones v. Gibson, (Kan.) 94 P. 998; Hurley v. Hurley, (Mass.) 19 N.E. 545. The title so acquired would be for the benefit of the landlord. Trice v. Comstock, 120 F. 620; Black on Tax Title, (2 Ed.) 288, 289; Wagner v. McLaughlin, 33 Ark. 195; Langley v. Chapin, 134 Mass. 82; Smith v. Specht, (N. J.) 42 A. 599; Hall v. Westcott, 5 A. 629; Bailey v. Campbell, (Ala.) 2 So. 646. The striking out of the testimony of plaintiff Clinton was error. Stuart v. McKeon, 36 Wyo. 106. The court is at liberty to disregard the order striking it out. Lindhorst v. Asylum, 231 Mo. 379; Jones v. Thomas, 218 Mo. 208. Service of notice of intention to apply for a tax deed must be personal. 2889 C. S. C. & A. R. R. Co. v. Smith, 78 Ill. 99; Ellis v. Carpenter, 56 N.W. 678; Haj v. Co., (Ill.) 103 N.E. 1000; Ins. Co. v. Co., (Wash.) 142 P. 661. The service of notice in this case was invalid as no notice was served upon Clinton nor upon her tenant, nor by publication. Hecht v. Boughton, 2 Wyo. 385; Copper Co. v. Rambler Co. (Wyo.) 243 P. 126. A tender of the amount paid by Dennis to obtain the quit claim deed from Elder was unnecessary. Reed v. Tyler, 56 Ill. 288.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

This is an action for the cancellation of a tax deed. Judgment was entered in favor of the plaintiff and the defendants have appealed. The land involved in this case is the S 1/2 SE 1/4 of Sec. 17, T. 23 N., R. 61 W. 6th P. M. This land was originally entered upon by Ray R. Thomas under the Reclamation Act of the United States of June 17, 1902 (32 St. at L. 388) and acts amendatory thereof and supplemental thereto. Subsequently the land, by transfer, came into the possession of one Spir Thompson, who transferred the land in question, together with other lands, to Walter G. Leason, and the assignment from Thompson to Leason was accepted by the commissioner of the general land office on April 7, 1921. On December 21, 1921, Walter G. Leason and his wife executed a warranty deed to the land to Jennie Aldred Clinton, the plaintiff herein. This deed is in due form and was filed of record in Goshen County, Wyoming, on June 24, 1922, and was recorded in Book 41 of Deeds on page 221. No notice of this deed was, however, given to the local land office of the United States in accordance with the rules of the land department, which reads as follows:

"No assignment of a homestead entry or any part thereof shall be accepted by the commissioner of the general land office or recognized as valid for any purpose until after the filing in the local land office of the instrument required by paragraph 41."

According to Rule 42 of the "General Reclamation Circular" approved May 18, 1916, assignments such as mentioned above may be effected by quit claim or warranty deed. The lands involved herein are included within an irrigation district as authorized by the laws of the United States. 43 U.S.C. A., c. 13, Sec. 621 et seq. In 1924, they were assessed by the irrigation district in the name of W. G. Leason, instead of in the name of plaintiff, respondent herein. The assessment, or tax, not being paid, the land was sold on July 14, 1925, to the Goshen Irrigation District for the sum of $ 128.28 and the certificate of purchase was thereafter assigned to Norah Elder, who is no kin to William G. Elder, one of the appellants herein. On September 18, 1926, Norah Elder gave notice of her intention to apply for a tax deed pursuant to the sale above mentioned. The notice was served on September 22, 1926, by one Oscar White upon one Jake Bolger, the person in possession and occupancy of the above described lands. During the trial of the case, White testified that he did not serve the notice upon Jake Bolger but upon the latter's son, in the road in front of the lands in controversy in this case. The testimony is uncontradicted. A tax deed was duly issued on January 20, 1927, by the treasurer of Goshen County, Wyoming, to Norah Elder, pursuant to the tax sale and the notice above mentioned. Thereafter, Norah Elder conveyed the land by quit-claim deed to William J. Elder, one of the defendants in this case, and notice of this conveyance was given to the United States Land Office at Cheyenne. Thereupon, and on July 19, 1927, the plaintiff herein commenced this action to cancel the tax deed, claiming that the same was invalid because the time for the application for a tax deed under the laws of this state had not expired; because the assessment was made in the name of W. G. Leason instead of in the name of the plaintiff; because the service made upon the occupant of the land is invalid, and because S. Everett Dennis, one of the appellants herein, agreed, as tenant of plaintiff, to pay the charges and assessments against the land involved herein for the year 1924; that, however, he failed to do so, and that William J. Elder, the other appellant herein, was in collusion with Dennis for the purpose of procuring a tax title to the land. This claim of respondent, plaintiff below, was denied in the answer, but it is unnecessary to refer to the allegations thereof in detail. The points raised therein shall, in so far as necessary, sufficiently appear hereafter.

1. It is the contention of the appellants that the courts of this state are without jurisdiction to hear and determine the issues herein. It is, in the first place, claimed that in view of the fact that the deed from Leason to the plaintiff herein was not filed in the United States Land Office in accordance with the rules and regulations of the Secretary of the Interior, it is wholly void. We think, however, that this regulation was made for the benefit of the United States and its land office, and that the defendants herein have no right to question the validity of the deed above mentioned collaterally. The...

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  • Clinton v. Elder
    • United States
    • Wyoming Supreme Court
    • October 7, 1929
    ...District Court, Goshen County; Cyrus O. Brown, Judge. On respondent’s petition for rehearing. Rehearing denied. For former opinion, see 277 P. 968. J. Roushar, of Torrington, and Mothersead & York, of Scottsbluff, Neb., for appellants. Kinkead & Pearson, of Cheyenne, and John L. Sawyer, of ......

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