Denny v. Stevens

• Decision Date: 10 November 1937
• Docket Number: 2024
• Citation: 52 Wyo. 253,73 P.2d 308
• Parties: DENNY v. STEVENS
• Court: Wyoming Supreme Court

73 P.2d 308

52 Wyo. 253

DENNY v. STEVENS

No. 2024

Supreme Court of Wyoming

November 10, 1937

Rehearing denied January 25, 1938, Reported at: 52 Wyo. 253 at 264.

ERROR to the District Court of Big Horn County; P. W. METZ, Judge.

Suit by Walter (W. G.) Stevens against Edward Denny and others wherein named defendant filed a cross-petition. Judgment for plaintiff, and named defendant brings error. Rehearing denied January 25, 1938--see 75 P.2d 378.

Affirmed in part and reversed in part with instructions.

For the plaintiff in error, the cause was submitted on the brief of C. A. Zaring of Basin.

The two questions involved in this action are: (1) Was the defendant Edward Denny barred from asserting any rights in and to said property by the provisions of Section 115-309, R. S. 1931? (2) Was the tax deed issued by the Byron Drainage District to the plaintiff Walter Stevens a valid deed and was it sufficient to vest the title in the premises in Stevens? The statute of limitations relied upon by defendant bars recovery after six years from date of sale for taxes. Plaintiff cannot invoke the statute of limitations in an action wherein he is plaintiff and the original landowner is the defendant. Walker v. Boh, 4 P. 275; Stump v. Burnett, 73 P. 894; 2 Cooley on Taxation, 3d Ed. 1083; Munson v Marks, 124 P. 187. A statute of limitations is not put in operation in favor of a party claiming under a tax sale, unless there is a valid tax judgment behind it. Holmes v. Loughren, 105 N.W. 558; Neilan v. Unity Investment Company, 126 N.W. 947; 61 C. J. 1430; Boyd v. Munson, 147 P. 662; Nichols v. Lagathry, 43 Iowa 189; Smith v. Sherry, 11 N.W. 465; Roberts v. First National Bank, 79 N.W. 1049; Sweigel v. Gates, 84 N.W. 481; Norton v. Barefoot, 32 P.2d 28; Copper Company v. Rambler Corporation, 34 Wyo. 304. The tax deed being void, the statute of limitations could not run upon it.

For the defendant in error, the cause was submitted on the brief of L. A. Bowman of Lovell.

Defendant in error bases his title on two tax deeds, one deed executed by the County Commissioners of Big Horn County, under which he went into possession. This deed was regular on its face but void for jurisdictional defects. The second deed was from the Byron Drainage District, based on non-payment of drainage taxes. It is conceded that the proceedings in support of this deed were regular and that the deed is good subject only to the fact that no service of application for the tax deed was made upon Edward Denny. The limitation statute is six years. Sec. 115-309, R. S. The present case is readily distinguishable from the facts in the Kansas cases cited by plaintiff in error. Note criticism of Walker v. Boh in the Montana case of Couch v. Chase, 6 P.2d 867; also Cooley on Taxation, 4th Edition, 2972, 2977, 2978. Section 115-309 is a statute of limitations. Matthews v. Blake, (Wyo.) 92 P. 242; Elec. Co. v. Rambler, (Wyo.) 243 P. 126. The Commissioners' deed is regular upon its face and possession was taken under it. Plaintiff is therefore barred from asserting any right or claim to the property in question. Nelson v. Davidson, (Ill.) 31 L. R. A. 325; White v. Clawson, 79 Ind. 188; Scott v. Hickox, 7 Oh. St. 88; Holmes v. Beal, 9 Cush. (Mass.) 223; Kemmerer v. Morlock, (Mich.) 84 N.W. 319; Ross v. Royal, (Ark.) 91 S.W. 178; Lassiter v. Lee, 68 Ala. 287; Terry v. Anderson, 95 U.S. 628; Saranac Land Co. v. Roberts, 177 U.S. 318.

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

OPINION

RINER, Justice.

The district court of Big Horn County entered a judgment quieting the title to certain lands situated in that county upon the suit of Walter (W. G.) Stevens, the decision being in his favor, as plaintiff in the case, and against the claims of the defendants therein, among whom was Edward Denny, who alone has brought the record here for review by proceedings in error. For convenience the parties to these proceedings will occasionally be referred to hereinafter as the "plaintiff" and the "defendant."

The undisputed facts material to be considered in disposing of the case would appear to be these: The W1/2 of the SE1/4 of the SE1/4 of Section 24, Township 56 North of Range 97 West of the 6th P. M., Wyoming, in Big Horn County, was subject to taxation for the year 1924; the taxes thereon being unpaid on July 17, 1925, these lands were sold for the accrued taxes of the preceding year to the County of Big Horn. Thereafter and on February 7, 1928, the Board of County Commissioners sold said property to Walter G. Stevens, and the same day the chairman of said Board signed an instrument designated "Commissioners' Tax Deed," which purported to convey the said lands to Stevens; it was witnessed by the County Clerk and Ex-officio Clerk of the Board and acknowledged by the chairman aforesaid before the Clerk of the District Court of said County. The instrument was placed of record in the office of the County Clerk above mentioned on July 9, 1928. The parties have agreed by stipulation, which was presented to the district court, that the records of Big Horn County, Wyoming, disclosed that the County Assessor of said County failed to attach his oath to the assessment roll and tax list for the year 1924, as required by law.

Denny acquired a deed to this land from the owners of record by conveyance dated May 16, 1929, and thereafter recorded in the office of the County Clerk of Big Horn County, just when the record is not clear. The record also fails to clearly show who these record owners were at the time Denny made his purchase.

Meanwhile and within thirty days after the execution of the instrument by the Board of County Commissioners aforesaid, Stevens took actual possession of the premises described therein, and between that time and April 30, 1935, the date of the trial of the cause in the district court, fenced them, put them into crops and by constant effort transformed the land from a state of utter unproductivity to one in excellent condition for the growing of crops.

Stevens also holds a quitclaim deed from the Byron Drainage District, conveying to him said lands, the instrument being dated January 8, 1934, and duly recorded March 8, 1934. The Drainage District obtained whatever title it held through purchasing the land on account of unpaid assessments for the year 1927 on said property. However, in obtaining that title the District seems never to have served a notice of intention to apply to the Treasurer of Big Horn County for a tax deed, as required by law, on Denny, the party in whose name the land was assessed.

August 29, 1934, the plaintiff brought suit under the provisions of Section 89-3901, W. R. S., 1931, in the usual form, in said district court, against Edward Denny, Lottie Pryde Walker, Ellen Pryde and William Pryde, as the sole and only heirs at law of William Pryde, deceased, as defendants, to have his title quieted to the lands aforesaid and also to those in the remaining half of that portion of the quarter section described. October 11, 1934, Denny alone filed an answer admitting plaintiff's possession of the property and alleging his own claims to the West Half of said portion of this quarter section to be superior to the right or title of plaintiff. He also filed then a cross-petition, in which he stated he was the owner of the West Half of said portion of this quarter section and that in the year 1928 the plaintiff wrongfully, without the defendant's consent, entered upon said lands, has occupied them ever since and has raised and taken crops therefrom during the preceding six years; that the reasonable rental value of said premises during said period is the sum of $ 600.00, and the defendant prayed that plaintiff take nothing by his action and that defendant recover of plaintiff the stated rental value. To this pleading plaintiff filed his reply in the nature of a general denial, which on the trial of the cause was allowed by the court to be amended so as to plead the short statute of limitations relating to tax titles, Section 115-309, W. R. S., 1931, which reads:

"No action for the recovery of real property, sold for non-payment of taxes, shall be maintained unless the same be brought within six years after the date of sale for taxes aforesaid."

The cause was tried to the court without a jury and with the result already indicated.

The defendant claims that the district court was in error in its judgment because the plaintiff cannot invoke the aid of Section 115-309 aforesaid, inasmuch as that statute is only available in defense of an action by a tax title holder, i.e., it may be used as a shield but not as a sword. Walker v. Boh, 32 Kan. 354, 4 P. 272; Stump v. Burnett, 67 Kan. 589, 73 P. 894; Cooley on Taxation, Vol. 2, 3rd Ed., Page 1083; and Munson v. Marks, 52 Colo. 553, 124 P. 187, are cited. The plaintiff's response to this proposition is that this rule is not applicable when a defendant seeks affirmative relief, as he does in the case at bar, by his cross-petition, and Couch v. Chase, 91 Mont. 234, 6 P.2d 867, and cases therein cited, are relied upon to establish this proposition.

The defendant also insists that another reason why the plaintiff should not prevail in this action is that the Commissioners' Tax Deed, relied upon by plaintiff in connection with the short statute of limitations quoted above, is absolutely void and that the statute does not run when the tax deed held by the party in possession of lands is void for jurisdictional defects, whether the defects appear upon the face of the deed or not. Sundry cases are called to our attention in support of this view, among them being Holmes v. Loughren, 97 Minn. 83, 105 N.W. 558. Plaintiff says in the course of his brief, referring to the Commissioners' Tax Deed...