Heffner v. Ketchen, 5695

• Decision Date: 02 March 1931
• Docket Number: 5695
• Citation: 50 Idaho 435,296 P. 768
• Parties: LEONARD HEFFNER and SUSIE HEFFNER, Appellants, v. JANET A. KETCHEN, Treasurer and Ex-officio Tax Collector of Ada County, Idaho, CHARLES A. RIDDLE et al., as the Board of County Commissioners of Ada County, Idaho, and E. E. LISTER et al., as Commissioners of Drainage District No. 2 of the County of Ada, in the State of Idaho, Respondents
• Court: Idaho Supreme Court

296 P. 768

50 Idaho 435

LEONARD HEFFNER and SUSIE HEFFNER, Appellants, v. JANET A. KETCHEN, Treasurer and Ex-officio Tax Collector of Ada County, Idaho, CHARLES A. RIDDLE et al., as the Board of County Commissioners of Ada County, Idaho, and E. E. LISTER et al., as Commissioners of Drainage District No. 2 of the County of Ada, in the State of Idaho, Respondents

No. 5695

Supreme Court of Idaho

March 2, 1931

TAXATION-DRAINAGE DISTRICT ASSESSMENTS.

1. Drainage district assessments are not "taxes" within usual meaning of Constitution and statutes, and do not fall within constitutional restraints (Const., art. 7, sec 5).

2. Drainage district assessments are special assessments for local benefits, and in general sense are "taxes."

3. School district taxes and drainage district assessments held "taxes" within statute imposing tax liens on lands conveyed to county by tax deed (C. S., sec. 3241, and sec 3263 as amended by Laws 1921, chap. 232, sec. 2).

4. School district taxes and drainage district assessments held "taxes" within statute whereby sale by county of land acquired through tax deed passes title unincumbered by subsequent tax liens (C. S., sec. 3423, as amended by Laws 1929, chap. 216).

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Action to enjoin tax deed and quiet title against taxes. Judgment for plaintiffs. Defendants appeal. Reversed and remanded.

Reversed and remanded with instructions. Costs to appellants.

T. L Martin, for Appellants.

State taxes, by the Constitution, and county taxes, by legislative declaration, are prior to special assessments. (Bosworth v. Anderson, 47 Idaho 697, 65 A. L. R. 1372, 280 P. 227.)

Assessments of Drainage District No. 2 are not taxes within the meaning of that term as it is usually employed in our Constitution and statutes. (Booth v. Clark, 42 Idaho 284, 244 P. 1099.)

When Ada county sold the property under consideration and conveyed same, title vested in the purchaser free of all taxes levied subsequent to 1924, the year of the delinquency upon which the tax deed to the county is based. (Chap. 159, 1927 Sess. Laws, p. 212.)

Carl A. Burke and Charles F. Reddoch, for Respondents.

The county acquires no vested right in property by virtue of a tax deed, and its purchase goes no further than to perpetuate the lien of the tax and is in aid of its collection. (Washington County v. Paradis, 38 Idaho 364, 222 P. 775.)

Under the statute of this state and the decisions of this court the title acquired by the county was subject to special assessments levied after the year of delinquency upon which the tax deed was issued. (C. S., sec. 3263, as amended by chap. 232, 1921 Sess. Laws, p. 520; Hunt v. City of St. Maries, 44 Idaho 700, 260 P. 155; Bosworth v. Anderson, 47 Idaho 697, 65 A. L. R. 1372, 280 P. 227; Seattle v. Everett, 125 Wash. 39, 215 P. 337.)

It is only by virtue of legislative action, that in the event of a sale of property acquired by the county through a tax deed, the lien of taxes assessed subsequent to the delinquency upon which the deed was issued to the county is canceled or eliminated. (C. S., sec. 3423, as amended by chap. 216; 1929 Sess. Laws, pp. 435-437.)

VARIAN, J. Lee, C. J., Givens and McNaughton, JJ., and Adair, D. J., concur.

OPINION

VARIAN, J.

This case involves the construction of statutes relating to the sale of real property by a county. There is no dispute as to the facts.

Appellants are the owners of the land upon which the taxes hereinafter mentioned were levied, and brought this action against the Treasurer and Ex-officio Tax Collector of Ada County, the County Commissioners of said county, and the Commissioners of Drainage District No. 2 of Ada County, the land involved being situate in said drainage district. The purpose of the action was to have the taxes, including said drainage district assessments for the years 1924, 1925, 1926, 1927, 1928 and 1929, declared not to be a lien upon appellants' lands; that the defendant Treasurer be enjoined from issuing a tax deed for delinquencies for the years 1926 and 1927, or the other years mentioned; that it be adjudged that when the property was conveyed by Ada County to Albert Heffner (immediate grantors of plaintiffs, Leonard and Susie Heffner) the title vested free of all liens "of taxes and assessments which had been levied against said property subsequent to the 5th day of January, 1925, and that title be quieted in appellants, etc."

Ada County and its officers defaulted and the cause was heard upon the answer of the Commissioners of Drainage District No. 2, resulting in findings and decree in favor of said defendants. Plaintiffs appeal.

The following taxes and assessments were levied against the property now owned by the Heffners for the year 1924, to wit:

State tax

$ 15.00

Ada County tax

22.14

School District No. 25

28.50

Drainage District No. 2 of Ada County,

Assessments

226.00

Total

$ 291.64

These taxes became delinquent in December, 1924. There was no redemption and tax deed issued to Ada County on January 12, 1929. Thereafter, Ada County sold said property at public auction to Albert Heffner for $ 466.12 and conveyed the same to him by deed. Said Albert Heffner in turn conveyed the land to appellants, Leonard and Susie Heffner. The published notice of sale contained the following statement, viz.: "Said sale made subject to all special taxes." As no claim of prejudice is urged on account thereof we shall not consider any bearing this statement might otherwise have on the matters in issue here.

All of the taxing units heretofore mentioned continued to levy taxes and assessments against the property for the years 1925, 1926, 1927, 1928, and Drainage District No. 2 alone levying for the year 1929. When the county received its tax deed in January, 1929, all state, county and school district taxes for the years 1928 to 1929, both inclusive, were canceled by order of the Board of County Commissioners of Ada County, leaving the delinquent drainage district assessments, uncanceled and unpaid, as follows:

Year

Certificate No.

Date

Amount

1925

7363

January 4, 1926

$ 197.98

1926

7593

January 3, 1927

188.73

1927

7873

January 2, 1928

233.94

1928

7709

January 7, 1929

244.87

1929

7717

January 6, 1930

152.18

On September 16, 1930, the County Treasurer published notice that unless the delinquent taxes and assessments for the years 1926 and 1927 were paid on or before January 3, 1931 respectively, she would issue tax deed to Ada County for the property.

The questions presented by this appeal are dependent for their solution upon the construction of two sections of our code, one relating to tax deed to the county, the other relating to deeds from the county, and which, so far as material to the issues here, read as follows:

C. S., sec. 3263, as amended by Sess. Laws 1921, chap. 232:

"Section 3263. Effect of Tax Deed as Conveyance. The deed conveys to the grantee the absolute title to the land described therein, free of all encumbrances except mortgages of record to the holders of which notice has not been sent as provided in section 3258 and except any lien for taxes which may have attached subsequently to the assessment."

C. S., sec. 3423, as amended by Sess. Laws 1929, chap. 216:

"Section 3423. Sale of County Property. To sell or offer for sale at public auction at the courthouse door, after 30 days' previous notice given by publication in a newspaper of the county, any property, real or personal, belonging to the county, not necessary for its use, and such sale of real property may be made by the board of county commissioners either for cash or upon such terms as the board of county commissioners may determine, and the same must be sold the highest bidder. The proceeds from such sales shall be paid into the county treasury for the use of the county, unless such property has been acquired by tax deed, in which event the proceeds from such sale shall be prorated to the taxing districts in which the property is situated in proportion to the amount of each tax for the year of delinquency upon which the tax deed was issued to the county. If such property is sold on terms the board of county commissioners may contract for the sale of the same for a period of years not exceeding five years, with an annual rate of interest on all deferred payments not to exceed six per cent per annum. The title to all property sold on contract shall be retained in the name of the county until full payment has been made by the purchaser. Any property sold by the board of county commissioners under the provisions of this section, either for cash or on contract, shall be assessed by the county assessor in the same manner and upon the same basis of valuation as though the purchaser held the record title to the property so sold. The board of county commissioners shall have authority to cancel any contract of sale if the purchaser shall fail to comply with any of the terms of such contract, and retain all payments made thereon. Any such sale made by the board of county commissioners of property acquired through tax deed shall, subject to the provisions of this section, vest in the purchaser all of the right, title and interest of the county in the property so sold, including all delinquent taxes which have become a lien on the property since the date of the tax sale certificate...