Electrolytic Copper Co. v. Rambler Consol. Mines Corp.

• Decision Date: 09 February 1926
• Docket Number: 1272
• Citation: 243 P. 126,34 Wyo. 304
• Parties: ELECTROLYTIC COPPER CO. v. RAMBLER CONSOL. MINES CORP. [*]
• Court: Wyoming Supreme Court

243 P. 126

34 Wyo. 304

ELECTROLYTIC COPPER CO. v. RAMBLER CONSOL. MINES CORP. ^[*]

No. 1272

Supreme Court of Wyoming

February 9, 1926

ERROR to District Court, Albany County; VOLNEY J. TIDBALL, Judge.

Action by the Rambler Consolidated Mines Corporation against the Electrolytic Copper Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Sullivan and Garnett, Jefferis and Tunison and C. G. Price for Plaintiff in Error.

The action being in ejectment, plaintiff must recover on the strength of its own title. 19 C. J. 1039, 1074; Davis v Living, 40 S.E. 365. Title vested in Albany County on tax sale, 2894 C. S. The six year statute of limitations ran from that time, 2844 C. S. The action is barred. McKinnon v. Fuller, 146 N.W. 910; Lauderdale v. Pierce, 131 N.W. 514; Huber v. Brown, 107 P. 850; McCash v. Penrod, 109 N.W. 180; Weber v. Martinez, 51 So. 679; Baylis v. Kerrick, 116 P. 1082; Gibson v. Smith, 124 N.W. 733. Plaintiff paid no taxes for 1913 nor has it ever taken steps to redeem. No irregularity in the tax proceedings will defeat the statute of limitations. Wilder v. Dennis, 202 F. 667; Cornelius v Ferguson, 121 N.W. 91. The statute does not require the name of the owner to be published in the sale notice. Plaintiff was charged with notice that its taxes were delinquent. Assessment in wrong name is of no avail after lapse of six years. Bank v. Lumber Co. 62 So. 907. McQuade v. Jeffray, 50 N.W. 233; Costello v McConnico, 168 U.S. 674; Hertzler v. County, 96 N.W. 294. Description of property in general terms is sufficient. People v. Leet, 23 Cal. 163; Landry v. McWilliams, 65 So. 875; Hunt v. Latham, 117 A. 94. Defects in the deed from the County are not material. Plaintiff cannot recover on any weakness in defendant's title. Investment Co. v. Mallin, 25 Wyo. 373-392. The property was bid in by the County under Section 2894 C. S. The commissioners were authorized to sell it, 2896 C. S. The owner is allowed two years to redeem from the County, 2897 C. S. No action for recovery of real property, sold for taxes, shall be maintained unless within six years after date of sale, 2844 C. S. In Matthews v. Blake, 16 Wyo. 116, the question was as to the validity of the tax deed. In this case title vested by operation of law. Under Section 2894 C. S., the title vested in the County which immediately tolled the statute. Plaintiff was not entitled to notice of sale, 2881, C. S. Hertzler v. County, (N. D.) 96 N.W. 294. Property was described as a mining claim, which was sufficient to identify it. Buckner v. Sugg, 96 S.W. 185; Mining Co. v. County, 125 P. 1018; Hunt v. Latham, Supra; 37 Cyc. 1056. Plaintiff was charged with notice that its taxes had not been paid. Investment Co. v. Mallin, Supra. It is unnecessary to plead the statute of limitations as a special defense in ejectment; 6237 C. S.; 9 R. C. L. 899; 2 Bates New Pl. 1579, and cases cited. Stocker v. Green, 94 Mo. 280; 4 A. S. R. 382, and note; the fact that 2844 C. S. was a portion of Chap. 109, laws 1876, does not change the context of the Section itself.

A. W. McCollough for Defendant in Error.

The six year statute of limitations was not pleaded below and is not available. Columbia Savings & Loan Co. v. Clause, Admr., 13 Wyo. 166; U. S. F. & S. Co. v. Parker, 20 Wyo. 29; 53, 54; First Natl. Bank v. Citizens State Bank, 11 Wyo. 32, 60. 25 Cyc. 1401. Defendant relies on a tax deed from the County. 2888 and 2897 C. S. The tax deed is not evidence. Matthews v. Blake, 16 Wyo. 116; Black on Tax Titles, Sec. 443; Marx v. Hawthorne, 37 U.S. 410; 37 Cyc. 1452. It must be accompanied by evidence of preliminaries. 2 Cooley on Taxation, 3d Ed. 1004. Provisions of law must be strictly complied with to support a tax title. Hecht v. Boughton, 2 Wyo. 385; Kinley v. Thelan, 110 P. 513; Parker v. Overman, 59 U.S. 137; 2 Cooley on Taxation, 3d Ed. 913; Black, Secs. 155, 443, 446. The six year limitation statute does not apply to sales to counties, but only to private purchasers. Laws 1876, Chap. 109. Counties had no authority to bid in land at tax sale until 1899; 2894 C. S. Mere lapse of time does not validate an illegal sale; Cooley, 3d Ed., Vol. 2, pg. 1067. Martin v. Barbour, 140 U.S. 634; Bird v. Benlisa, 142 U.S. 664. The county did not bid in any property. The county never took possession. The limitation statute is an adverse possession statute. Harvey v. Douglass, 83 S.W. 946; Holmes v. Loughren, 105 N.W. 558. Defendant's authorities are not in point. Name of owner must be correctly stated. Hecht v. Boughton, Supra; Gibson v. Foster, 135 P. 121. Lands and improvements must be separately assessed. Const. Art. XV, Sec. 1. 2775 C. S. Property must be assessed to the owner. Hecht v. Boughton, Supra; Black, Sec. 105; Cooley (1) 3d Ed. 729. An assessment sale under wrong name is void. Gibson v. Foster, Supra; Mathews v. Nefsy, 13 Wyo. 458. There must be a proper description. Raymonds Lessee v. Longworth, 14 How. 76; Sullenger v. Baecher, (Ind.) 101 N.E. 517; Martin v. White, (Ore.) 100 P. 290; Smith v. City (Cal.) 112 P. 307; Van Cise v. Carter, (S. D.) 68 N.W. 539; Moran v. Thomas (S. D.) 104 N.W. 212, 213; Hewett v. Co. (Ark.) 180 S.W. 199; Booth v. Cooper (Ida.) 126 P. 776; Lake County v. Min. Co. 66 Cal. 17; Stout v. Mastin, 139 U.S. 156. A valid levy must be shown. Alexander v. Capps, 140 S.W. 722. Tax proceedings are strictly construed; 37 Cyc. 1339; Black, 155, 156; Cooley 481; Harrington v. Herster (N. J. E.) 108 A. 150. A certified list of delinquent taxes must be filed with the Treasurer. Noble v. Amoretti, 11 Wyo. 230, and a proper notice of sale given. 2862, 2877 C. S. The record must show proof of publication. Townsend v. Martin, (Ark.) 17 S.W. 875; Cooley on Taxation, 929. Serving of notice, three months before the expiration of the redemption period, is necessary to validate tax deed. Matthews v. Nefsy, Supra; Black, 385; 37 Cyc. 1425; King v. Boettcher, (Nebr.) 147 N.W. 836. The owner may redeem it any time prior to the date of notice. Burns v. State, 25 Wyo. 491; Matthews v. Nefsy, Supra. Title acquired by a county differs from that vesting in a private purchaser. The effect is to maintain the county's lien for taxes, and the same proceedings to perfect title are required as in the case of a private purchaser. 37 Cyc. 1355 and cases cited. The same rule of strict compliance as to proceedings applies. Rush v. Co. (Mont.) 93 P. 943; Borthwick v. Johnson, (Ore.) 137 P. 784; Dennis v. Robertson (Va.) 96 S.E. 802; Harton v. Enslen, (Ala.) 62 S. 696. The proceedings vested no legal title in defendant. Plaintiff in error has urged that it is unnecessary to plead the statute of limitations as a special defense in ejectment. Assuming that the defense can be made under the general issue, it was not made and no assignment of error is before this court on the point. Murphy v. Co., 27 Wyo. 455; C. B. & Q. R. R. Co. v. Lampman, 18 Wyo. 106; Diamond Bros. v. Beckwith Co., 17 Wyo. 333; U. S. v. Trabing, 3 Wyo. 144.

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

OPINION

KIMBALL, Justice.

This is a statutory action to recover the possession of real property. The judgment of the district court on a trial without a jury was for the plaintiff, and the interested defendant brings error. The parties will be called plaintiff and defendant as in the court below.

The property consists of ten lode mining claims, named Rambler, Rambler No. 2, Rambler No. 3, Rambler No. 4, Rambler No. 5, Isabella No. 1, Isabella No. 2, Isabella No. 3, Isabella No. 4, and Strangler. Their total area is something less than 200 acres in sections 4 and 5, twp. 14, and sections 32 and 33 in twp. 15, range 79. Before or during the year 1906 all the claims were patented, and the patents recorded in the office of the county clerk of Albany County. The title after patent until 1908 was in Rambler Mining and Smelting Co. In January, 1908, the claims were conveyed to Rambler Copper and Platinum Co., by a deed recorded in June of the same year. Title remained in the last named company until May, 1919, when the claims were conveyed to the plaintiff.

The defendant relied on title obtained through a sale in 1914 for taxes for the year 1913. The decision of the case depended on the validity of this tax title. The plaintiff claims that the tax sale was void for many reasons, several of which we deem it unnecessary to consider. We think the facts with reference to the assessment of the property warranted a finding by the trial court that the tax sale was void because the property was not described as required by the statute. Section 2775, Wyo. C. S. 1920, provides, among other things, that lands shall be assessed by township, range, section or part of a section, and where such part is not a legal sub-division, by "some other description sufficient to identify it." The same section provides also that the assessment roll shall specify the name of the individual or corporation to whom any property shall be taxable, which means the owner. Hecht v. Boughton, 2 Wyo. 385, 400.

In all the records of assessment and sale the property in question is listed as belonging to Rambler Mining and Smelting Company. On the assessment schedule, returned by the assessor, it is described as 360 acres of "real estate in Sec. 34, Twp. 15, Range 79;" on the combined assessment roll and tax list and on the record of sales, as "mining claims;" and in the notice of sales as "mining claim." No part of the claims was in section 34; they did not embrace 360 acres, but only 200 acres; they had not belonged to the owner named for some five years, as clearly shown at the time of assessment by the deed records of the county, and there was no evidence that Rambler Mining and Smelting Company did not own other real estate or other mining...