Hackett v. Linch

• Decision Date: 19 September 1941
• Docket Number: 2209
• Citation: 116 P.2d 868,57 Wyo. 289
• Parties: HACKETT v. LINCH ET AL
• Court: Wyoming Supreme Court

116 P.2d 868

57 Wyo. 289

HACKETT v. LINCH ET AL

No. 2209

Supreme Court of Wyoming

September 19, 1941

APPEAL from the District Court, Crook County; JAMES H. BURGESS Judge.

Partition action by Della Hackett against David Linch and others and Cecelia Schloredt and Louis E. Schloredt. From a judgment of distribution of the proceeds of the property, Louis E Schloredt and Cecelia Schloredt appeal.

Modified and Affirmed.

For the appellants, the cause was submitted upon the briefs of James T. McGuckin of Sundance, Wyoming, and John T. Milek of Sturgis, South Dakota.

There was insufficient evidence to support the findings of the court, which were contrary to the evidence and the law. Reynolds did not perform services for all of the parties. The record shows that he appeared for the First National Bank of Black Hills, a claimant adverse to some of the parties. The last service performed by him was more than eight years ago. The court erred in allowing Reynolds attorney fees. Was the tax deed to Louis E. Schloredt ineffectual as shown by the record? The redemption period had not expired and Goodson had the right of redemption of the land at any hour of June 25 provided Schloredt had not filed his proofs, made payment of fees, filed his original certificate of sale and demanded a deed. The treasurer having executed a deed on the above date, the subsequent act of Goodson in paying money to the treasurer was unavailing. It is contended that the title had vested in Schloredt, but this court has held that the right of redemption continues until the date of expiration stated in the notice. Burns v. State, 25 Wyo. 491. The holding of the court that the Schloredt deed was ineffectual was error, for the deed was a valid and subsisting instrument. The attempted redemption by Goodson was ineffectual, for the reason that he did not pay the amount legally due as shown by the evidence. The evidence shows that Schloredt paid the sum of $ 367.67 in redeeming from tax sale, which was the amount of taxes, penalty, interest, costs and taxes subsequent to the issuance of a certificate. Later, Schloredt paid additional sums to redeem the land comprising a total of $ 743.65, paid by him for the benefit of all parties, and there is no evidence that any part has been repaid to him. The Eva Worrell instrument was a straight out assignment of interest in payment of past indebtedness. The Eva Worrell interests belonged to Louis E. Schloredt, and it is immaterial which one of the appellants is awarded this interest. The evidence shows that Mary Blank and Albert Shute assigned their share to Cecelia Schloredt prior to the trial. The order allowing Reynolds $ 250.00 as attorney fees was erroneous. There was nothing in the record showing that he was employed by any of the parties after July, 1932, or performed any services for anyone thereafter. His claim for attorney fees is barred by the statute of limitations. The payment of $ 1703.36 was erroneous. The final payments to be made to Goodson and Shulte will depend upon the decision of this court, in passing upon the several objections and specifications of error heretofore presented by appellants. The payments ordered to Blank and Shute are clearly without foundation and contrary to the evidence, they having assigned their interest to Cecelia Schloredt. A new trial should be awarded to appellants to enable the court to correct the errors that have been made, unless this court should modify the judgment to conform to the evidence. The claim of Otis Reynolds should be excluded. The tax deed to Louis E. Schloredt should be surrendered and delivered to him and he should be awarded 3/10 of the proceeds of the sale by virtue of the deed. He should also be reimbursed in the sum of $ 743.65 for taxes paid on redemption. Cecelia Schloredt is entitled to 124/300 shares; Myron W. Goodson is entitled to only 30/300 shares in the proceeds and Mary Blank and Arthur Shute are not entitled to any share whatsoever. The record presents a very confused situation arising over a period of ten years, with much litigation in between times, and the passing of claims and substitution of new parties. However, the correction of the final judgment herein sought by appellants will adjust the whole matter in accordance with the facts.

For the respondents, the cause was submitted upon the briefs of E. E. Wakeman of Newcastle and Otis Reynolds of Sundance.

Otis Reynolds was entitled to an allowance for attorney fees. Section 89-3823, R. S. 1931. He represented the plaintiff, Della Hackett, and prosecuted the suit through the settling of the issues and the judgment of partition. The original action was contested by Louis E. Schloredt. He did not own any interest in the land other than a lessee. Reynolds performed a double service for the common benefit of all the persons interested and was entitled to an allowance for such service. 47 C. J. 609, 611; Watson v. Sutro (Calif.) 37 P. 201; Murray v. Conlon (Mont.) 48 P. 744. The contention that the Otis claim was barred by litigation was without merit. Statutes providing for the redemption of land from tax sales should be liberally construed. Barrett v. Barrett, 23 P. 856. Appellant has failed to sustain his claim under his pretended tax sale purchase. He failed to show a substantial compliance with the law. 61 C. J. 1369; Williams v. Payton, 4 L.Ed. 518; Americ v. Alvarado (Calif.) 27 P. 356; Hamer v. Investment Co. (Colo.) 226 P. 299; Ayers v. Lund (Ore.) 89 P. 806; Asper v. Moon, 67 P. 409; Davis v. Minn. Baptist Convention, 45 Wyo. 148; Barrett v. Barrett, supra. Chapter 23 of the Laws of 1941 was not in effect at the time of this transaction. Chapter 37, Laws 1937 was the governing statute and requires notice to the person in possession of the land, and also the person in whose name the land was taxed, as well as the record owner and mortgagee, if any. This statute was not complied with. A cotenant in exclusive possession of the property may not recover taxes paid, excepting as an offset to rents. Where no rent is claimed, he may recover for taxes paid. Cardwell v. Clark, 158 N.Y.S. 300; Haight v. Pine, 42 N.Y.S. 303; McClaskey v. Barr, 62 F. 209. Myron W. Goodson is entitled to a one-tenth interest in the land, by virtue of a deed from Eva Worrell, an heir of John V. Linch, which claim in this respect is superior to that of Cecila Schloredt, as shown by the evidence. The burden of proof being on the appellants and no notice having been shown, their claim must fail.

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

OPINION

BLUME, Justice.

The action was originally commenced by the plaintiff Della Hackett on September 10, 1929. Otis Reynolds appeared as her attorney. The lands involved herein were ordered to be partitioned between the parties by order of court on July 19, 1930. A writ of partition was issued on November 14, 1930. The commissioners of partition fixing the value of the property at $ 18,000, reported that it could not be partitioned in kind, but should be sold, which, by order of the court of January 6, 1931, was directed to be done. An order of sale was issued, the land sold for $ 12,000, but the bid was rejected by the court on September 8, 1931, and another order of sale was directed to be issued, to sell the land for not less than $ 12,000. Thereafter and on July 14, 1932, the plaintiff, appearing by Otis Reynolds, her attorney, asked a modification of the order of court last mentioned, asking that the court direct the sale of the property at not less than $ 5000. Nothing further was done in the case until November 22, 1938, when Myron W. Goodson, who was the grantee of the rights of Della Hackett, plaintiff, filed a petition in the case asking that an alias writ of partition be issued, and that the order limiting the price for which the land be sold be set aside. Goodson appeared by E. E. Wakeman as his attorney. The petition was granted, the land was sold to Myron Goodson for $ 6005, and the sale was confirmed by the court, without, however, distributing the proceeds at that time, the court retaining jurisdiction to do that thereafter. An appeal to this court from the order of confirmation was taken by Louis E. Schloredt and Cecelia Schloredt, parties to the action, but the action of the trial court was affirmed (104 P.2d 164). Thereafter, by an order of December 20, 1940, the court made an order of distribution of the proceeds of the sale, and from that order Louis E. Schloredt and Cecelia Schloredt have appealed.

1. The court allowed Otis Reynolds a fee of $ 250 on account of acting as attorney for Della Hackett in the original proceeding. Exception is taken to this order. It is not claimed that the amount is excessive, but that the court had no right to allow him anything at all. Section 89-3823 provides that in an action for partition, the court shall tax the costs equitably and may allow "a reasonable counsel fee, which shall be paid to the plaintiff's counsel, unless the court award some part thereof to other counsel for service in the case for the common benefit of all the parties." It appears not only that Otis Reynolds was the plaintiff's attorney when the action was originally started herein, up to at least July, 1932, and conducted the usual litigation in such action, but that adverse interests were at that time asserted by Louis E. Schloredt, which were defeated, presumably, by the help of plaintiff's attorney. We cannot say that, in view of our statute, the trial court abused its discretion.

2. Louis E. Schloredt claimed an interest in the funds distributed by the court under the following facts: In 1932 the county treasurer of Crook County, Wyoming, where the land in question is situated, sold a three tenths interest therein on account of...