Hole v. Duzer

• Decision Date: 19 May 1905
• Citation: 11 Idaho 79,81 P. 109
• Parties: HOLE v. VAN DUZER
• Court: Idaho Supreme Court

81 P. 109

11 Idaho 79

HOLE v. VAN DUZER

Supreme Court of Idaho

May 19, 1905

BILL OF EXCEPTIONS-SPECIFICATIONS OF ERROR-MOTION TO STRIKE-EQUITABLE RELIEF.

1. Under the provisions of section 4428, Revised Statutes, a bill of exceptions is not required to contain a specification of errors relied on unless the exception is to the verdict or decision upon the ground of the insufficiency of the evidence to sustain it. In that case the bill of exceptions must specify the particulars in which the evidence is not sufficient, and if it does not, a motion to strike will be sustained.

2. Where the plaintiff asks for equitable relief in the way of clearing his title from a tax sale, certificate and deed, and by his complaint shows that defendants have paid the tax upon the land in controversy and received his deed from the county, and further by his complaint tenders the money into court to reimburse defendant for all payments with statutory interest, equity will not decree him a clear title until he has reimbursed the defendants.

(Syllabus by the court.)

APPEAL from the District Court of Kootenai County. Honorable Ralph T. Morgan, Judge.

Judgment for the plaintiff. Modified.

Judgment modified; and cause remanded with directions. Each party to paid his or their own costs of this appeal.

Poindexter & Kimball and E. C. McDonald, for Appellants.

Respondent having recognized in his complaint the tax sale and tax deed and alleging no defect in the same, nor in the proceedings on which they were based, is estopped from going back of the deed itself to attack these proceedings of the tax deed. The facts showing this validity should be pleaded. (21 Ency. of Pl. & Pr. 487; 2 Estee's Pleading, sec. 3738; 11 Am. &amp Eng. Ency. of Law, 2d ed., 391, 447; Glos v. Kingman & Co., 207 Ill. 26, 69 N.E. 632; Mitchell Iron etc. Co. v. Flambeau Land Co. (Wis.), 98 N.W. 530.) The objection goes to the jurisdiction of the court, and can be raised at any time. (6 Ency. of Pl. & Pr. 372, 373.) The respondent is further concluded and estopped from raising any question as to the regularity of the assessment and levy of the tax by the allegation of his complaint that he is ready and willing to pay the appellants all taxes paid by them on the property, and his payment of money into court for that purpose. (Herrick v. Niesz, 18 Wash. 132, 51 P. 346; 11 Am. & Eng. Ency. of Law, 2d ed., 448, note 3; Conklin v. Cullen, 29 Mont. 38, 74 P. 72, 75.) Appellant's title rests upon the tax deed. The statute (Idaho Rev. Stats. 1887, sec. 1555) makes the tax deed prima facie evidence of the validity and regularity of eight specific matters, viz., the assessment, the equalization, the levy, the nonpayment of the tax, the sale, the failure to redeem, the execution of the deed by the proper officer, and the ownership of the land where it is sold for personal taxes. Of the regularity of every other proceeding the tax deed is made conclusive evidence. (Idaho Rev. Stats. 1887, sec. 1556.) The tax deed conveys the absolute title. (Idaho Rev. Stats. 1887, sec. 1557.) Furthermore, the assessment-book is prima facie evidence "that all forms of law in relation to the assessment and levy of such taxes have been complied with." (Idaho Rev. Stats. 1887, sec. 1558.) But no assessment or act relating to the assessment or collection of taxes is illegal on account of informality. (Idaho Rev. Stats. 1887, sec. 1704.) These statutes have reversed the common-law rule, shifted the burden of proof from the tax purchaser to the party attacking his title, rendered obsolete the old tax decisions, and worked a complete revolution in the law of tax titles--putting them upon a solid basis. (Black on Tax Titles, secs. 448, 449, 452; Davis v. Pacific Imp. Co., 137 Cal. 245, 70 P. 15, 17; Hayes v. Ducasse, 119 Cal. 682, 52 P. 121; O'Grady v. Barnishel, 23 Cal. 287; Lacey v. Davis, 4 Mich. 140, 157, 66 Am. Dec. 524.) "He who seeks equity must do equity," and respondent could not recover the land under any circumstances without first reimbursing appellant for the taxes and charges paid thereon. (Black v. Johnson, 63 Kan. 47, 64 P. 988; Black on Tax Titles, sec. 442; Parks v. Watson, 20 F. 764; Smith v. Prall, 133 Ill. 308, 24 N.E. 521; Miller v. Cook, 135 Ill. 190, 25 N.E. 756, 10 L. R. A. 292, and note at pp. 292, 296, 297; Yeamans v. Lepp, 167 Mo. 61, 66 S.W. 957, 961; Glos v. Cratty, 196 Ill. 444, 63 N.E. 690, 691; Dixon v. Eikenberry (Ind. App.), 65 N.E. 938; Mercer v. Justice, 63 Kan. 225, 65 P. 219, 220; McClain v. Batton, 50 W.Va. 121, 40 S.E. 509; Crisman v. Johnson, 23 Colo. 264, 58 Am. St. Rep. 224, 47 P. 296, 298; Williams v. Chaplain, 112 La. 1075, 36 So. 859.)

A. E. Gallagher, for Respondent.

Section 4428 of the Revised Statutes of 1887 provides: "No particular form of exception is required. But when the exception is to verdict or decision upon the grounds of the insufficiency of the evidence to sustain it, the objection must specify the particulars in which such evidence is alleged to be insufficient." (Eddelbuttel v. Durrell, 55 Cal. 277; Shepherd v. Jones, 71 Cal. 223, 16 P. 711.) In Warren v. Stoddart, 6 Idaho 692, 59 P. 540, this court held that when the record was brought here by bill of exceptions that this court would not review the insufficiency of the evidence to sustain the findings unless the specifications of the insufficiency of the evidence was set forth in the bill of exceptions as required by section 4428 of the Revised Statutes of 1887. (See, also, Pralus v. Pacific G. & S. M. Co., 35 Cal. 30-37; Lamance v. Byrnes, 17 Nev. 197, 30 P. 700, 701; In re Strock, 128 Cal. 658, 61 P. 282, 283; Mader v. Taylor-Romney-Armstrong Co., 15 Utah 161, 49 P. 255; Spotts v. Hanley, 85 Cal. 155, 24 P. 738.) We contend further that the answer on the question of title is insufficient because it did not allege the facts, which if true show that the tax sale was regular and valid; all the steps leading up to the tax sale, including the assessment, equalization, nonpayment of taxes, advertising, sale, nonredemption from sale, tax deed and transfer to defendants, should be alleged in the answer. The defendants were relying upon certain specific facts as constituting their defense to the plaintiff's complaint. These facts must be stated, not conclusions of law. The appellants allege certain conclusions. The name of owner of land, amount of assessment, nonpayment of taxes, the kind, length of time of advertisement are not given. In fact, no fact is stated. The presumption that the tax and certain other things mentioned in statute are regular is a rule of evidence, and not a rule of pleading, and the setting up of a regular tax deed does not dispense with the necessity of allegations of all the facts which make that deed regular. (Russell v. Mann, 22 Cal. 132, 134; Himmelman v. Danos, 35 Cal. 441, 449; Gage v. Harbert, 145 Ill. 530, 32 N.E. 543, 544; Jones v. Miracle, 93 Ky. 639, 21 S.W. 241; People v. Central P. Ry. Co., 83 Cal. 393, 23 P. 303, 305; Black on Tax Titles, 2d ed., sec. 462.) The following cases fully sustain our contention that the statutory recitals must be strictly followed, that the recitals given in the certificate and deed are insufficient, and that the tax deed is void on its face because of these facts: Grimm v. O'Connell, 54 Cal. 522, 524; Hubbell v. Campbell, 56 Cal. 527, 532; De Frieze v. Quint, 94 Cal. 653, 28 Am. St. Rep. 151, 30 P. 1; Anderson v. Hancock, 64 Cal. 455, 456, 2 P. 31; Hughes v. Cannedy, 92 Cal. 382, 28 P. 573, 574; Duncan v. Gillette, 37 Kan. 156, 14 P. 479, 482; Spurlock v. Allen, 49 Mo. 178; Black on Tax Titles, 2d ed., sec. 398; 25 Am. & Eng. Ency. of Law, 1st ed., p. 683. If appellants had any lien against the property by reason of their owning any tax certificate or having paid any taxes, this is an affirmative defense, and one of the things appellants were required to set up in their answer or cross-complaint, in order to get any benefits of it, and not having done so, cannot now assert any lien against the property on that ground. Appellants can claim only the interest they assert in their answer. (Fry v. Summers, 4 Idaho 424, 39 P. 1118; Pennie v. Hildreth, 81 Cal. 127, 22 P. 398-400; Snodgrass v. Parks, 79 Cal. 55, 21 P. 429, 431; Winter v. McMillan, 87 Cal. 256, 22 Am. St. Rep. 243, 25 P. 407; Burton v. Huma, 37 F. 738; Weston v. Estey, 22 Colo. 334, 45 P. 367; Stuart v. Lowry, 45 Minn. 91, 51 N.W. 662; Riverside Land Co. v. Pietsch, 35 Wash. 210, 77 P. 195, 197; 17 Ency. of Pl. & Pr. 349.) Furthermore, there is no allegation either in the complaint or answer, and no evidence, of the amount of taxes paid by appellants. (Harper v. Rowe, 53 Cal. 233, 238; Axtell v. Gerlach, 67 Cal. 483, 8 P. 34; Power v. Larabee, 2 N. Dak. 141, 49 N.W. 724, 727; Perham v. Haverhill Fibre Co., 64 N.H. 485, 14 A. 462; McCormick v. Edwards, 69 Tex. 106, 6 S.W. 32, 33; Black on Tax Titles, 2d ed., sec. 463; Cooley on Taxation, 2d ed., pp. 476-553.)

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

The facts are stated in the opinion.

STOCKSLAGER, C. J.--

This is an appeal from the judgment of the district court of Kootenai county, made and entered on the ninth day of April, 1904. The action involved the title to all of section 9, township 51 north of range 4 west, Boise meridian in Kootenai county, state of Idaho. In his complaint the plaintiff claims to be the owner of the fee of said premises; that the defendants, and each of them, claim an estate or interest in or a lien upon said premises adverse to the title and claim of said plaintiff.

The third allegation is that the claims of said defendants, and each of them, in and to said premises are all without any foundation, right or legality whatever, either in law or in equity, and that said defendants...