Johnson v. Sowden

Decision Date28 November 1913
Citation25 Idaho 227,136 P. 1136
PartiesGEORGE W. JOHNSON, Appellant, v. WILLIAM SOWDEN, Appellant, and D. W. TEETERS, M. T. HARLAN and F. E. THOMPSON, Defendants
CourtIdaho Supreme Court

ACTION TO QUIET TITLE-ADVERSE POSSESSION-TAX SALE.

1. Where the evidence shows that J. was in open, notorious and adverse possession of the land for more than five years continuously before the date of the trial, and that he paid the taxes assessed against his possession, and made improvements upon the land by building a house and barn and fencing a portion of said land, and it appears that S. claims a title upon three tax receipts for the years 1907, 1908 and 1909, and the holder of the tax receipts was at no time in possession of said land or made any improvements upon the same and never demanded or received a deed based upon the tax receipts or from any person who had any title or claim to said property, and J. has shown his title by adverse possession, and S. has shown that he has a lien upon the land for the taxes he paid, with interest, for the years 1907 1908 and 1909, it is error on the part of the trial court to enter a judgment quieting the title to each of the parties to a part of the tract of land.

2. In an action to quiet title, where it is shown that J. and S both claim title, one by adverse possession and the other by reason of being holder of three tax receipts for the years 1907, 1908 and 1909, and J. showed by the evidence that he has complied with the law as provided in secs. 4041, 4042 and 4032, Rev. Codes, and the holder of the tax certificates never returned the same or demanded a deed of said lands upon the certificates and never went into possession of the land the adverse possession should not be defeated by the lien of the tax certificates, but the adverse owner should pay to the holder of the tax certificates the amount due for taxes under the law.

APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Edward A. Walters, Judge.

An action to quiet title. Judgment modified.

Judgment modified. Costs awarded to plaintiff.

Sullivan, Sullivan & Baker, for Appellant Sowden.

"Occupation of another's land, in the belief that it is unclaimed land belonging to the state, is not adverse possession." (Schleicher v. Gatlin, 85 Tex. 270, 20 S.W. 120.)

Where the occupation of land is by a mere mistake, and with no intention on the part of the occupant to claim as his own land which does not belong to him, but intends to claim only to the true line, wherever it may be, the holding is not adverse. (1 Cyc. 1037, 1038, and cases cited.)

This court in construing sec. 4043 has repeatedly held that in order to acquire title by adverse possession, whether claimed under color of title or not, it is necessary that the adverse claimant shall have paid all taxes assessed against the land according to law. (Swank v. Sweetwater Irr. etc. Co., 15 Idaho 353, 98 P. 297; Green v. Christie, 4 Idaho 438, 40 P. 54; Brose v. Boise City R. etc. Co., 5 Idaho 694, 51 P. 753; Little v. Crawford, 13 Idaho 146, 88 P. 974; Brown v. Brown, 18 Idaho 345, 110 P. 269.)

We find no provision of the statute authorizing the acquisition of title by adverse possession without color of title, where the land has not been usually cultivated or improved or substantially inclosed, and where taxes have not been paid by the adverse claimant or those under whom he claims. In the case at bar Johnson had inclosed only about five or six acres and had cultivated but a small portion of the same. Without color of title there can be no constructive possession. (1 Cyc. 1122, 1123; Brumagim v. Bradshaw, 39 Cal. 24; Madden v. Hall, 21 Cal.App. 541, 132 P. 291; Saxton v. Hunt, 20 N.J.L. 487; Miller v. Shaw, 7 Serg. & R. (Pa.) 129; Hamilton v. Flournoy, 44 Ore. 97, 74 P. 483; Grant v. Oregon Nav. Co., 49 Ore. 324, 90 P. 178, 1099; Polack v. McGrath, 32 Cal. 15; Sunol v. Hepburn, 1 Cal. 254; 1 Am. & Eng. Ency. of Law, 861, and cases cited.)

At the time of the redemption by Johnson, he had no right or title to or interest in the land such as would authorize him to redeem or would authorize the officials of Blaine county to permit him to redeem. (Jaggard on Taxation, p. 622; Da Silva v. Turner, 166 Mass. 407, 44 N.E. 532; Rutledge v. Price County, 66 Wis. 35, 27 N.W. 819.)

A mere occupant of premises is not entitled to redeem. (Frazier v. Johnson, 65 N.J.L. 673, 48 A. 573.)

The pretended redemption of appellant Johnson could in no way prejudice the right of appellant Sowden. (37 Cyc. 1387; White Pine Mfg. Co. v. Morey, 19 Idaho 49, 112 P. 674.)

J. G. Hedrick, for Appellant G. W. Johnson.

As the plaintiff showed that he had been in open, notorious and adverse possession of this land for more than five years continuously, before the date of the trial, and had paid the taxes thereon, under our statutes he held the land by adverse possession. (Secs. 4041, 4043, Rev. Codes; Cramer v. Walker, 23 Idaho 495, 130 P. 1002; Craven v. Lesh, 22 Idaho 463, 126 P. 774.)

The plaintiff having established a prima facie case, the burden was then upon the defendant, under his cross-complaint, to show title in himself, and he must stand or fall by his own title. (Lougee v. Wilson (Colo. App.), 131 P. 777.)

A tax certificate is not evidence of title and does not pass title, and cannot be admitted for the purpose of establishing title to land. It vests in the purchaser only a lien for the sum paid. (Bacon v. Rice, 14 Idaho 107, 93 P. 511.)

STEWART, J. Ailshie, C. J., and Stevens, District Judge, concur.

OPINION

STEWART, J.

This is an action to quiet title to the N. 1/2 of the S.E. 1/4 and N. 1/2 of the S.W. 1/4, sec. 2, twp. 1 N., R. 18 E., B. M. The complaint is in proper form in an action to quiet title. The defendant filed an answer denying all the allegations of the complaint, and also a cross-complaint alleging a cause of action to quiet the title to the same property described in the complaint, which is in proper form in an action to quiet title. This cross-complaint was met by a denial of the allegations contained therein. Upon these issues the case went to trial. The parties stipulated that the findings of fact and conclusions of law in the above-entitled action be waived.

Upon the evidence and the pleadings the court entered a decree wherein the title of plaintiff is quieted to the following lands which were included in the lands described in the complaint and also the cross-complaint: The N.E. 1/4 of the S.E. 1/4 of sec. 2, twp. 1 N., R. 18 E., B. M., together with the tenements, hereditaments and appurtenances thereto belonging or in any wise appertaining. It was also decreed that the defendants were perpetually estopped and enjoined from setting up any claim thereto or to any part of the property decreed to plaintiff.

The court also decreed that the defendant's title was quieted to the N.W. 1/4 of the S.E. 1/4 and the N. 1/2 of the S.W. 1/4 of sec. 2 in twp. 1 N., R. 18 E., B. M., together with the tenements, hereditaments and appurtenances thereto belonging or in any wise appertaining, and that the plaintiff was perpetually estopped and enjoined from setting up any claim thereto or to any part of the property decreed to defendant.

The plaintiff appeals from that portion of the decree which decrees to the defendant the land above described, and the defendant likewise appeals from that portion of the decree quieting title in plaintiff to the lands described.

A stipulation was filed by counsel for the respective parties that the two appeals be consolidated and that the same transcript be used by both parties.

The appellant Sowden assigns errors as to the insufficiency of the evidence, that it was not sufficient to sustain that portion of the judgment or decree quieting title in Johnson to the lands described in that decree, 1st, in that it fails to show that Johnson had any right, claim or interest in said property; 2d, in that it fails to establish that the plaintiff had any right, claim, interest or title in the same or any portion thereof sufficient to entitle him to redeem the same from the tax sale. Then follows a number of errors of law which will be taken up after a consideration of the errors assigned as to the sufficiency of the evidence.

The appellant Johnson specifies errors in the insufficiency of the evidence to sustain the decree of the district court as follows: 1. That the defendant Sowden is the owner of the land decreed to him; 2. That the adverse claim of the plaintiff Johnson to the land is invalid and groundless. Then follow errors of law which we will consider in order in the opinion.

We will consider the evidence in support of the title to the land in question by virtue of the possession of Johnson. The facts as to Johnson's title are, that the government issued a patent to the land in controversy to one William C. Morse that Morse and wife deeded the land to M. T. Harlan, and Harlan and wife deeded the land to Duncan W. Teeter; that subsequently Teeter deeded it by quitclaim deed to the plaintiff Johnson. Johnson testified in this case, and his evidence was corroborated by his son and other witnesses, that he lived on the land described since December 23, 1905; that he has built a house and stable on the land, costing about $ 125, has fenced about 40 acres with a substantial fence and cultivated about fifteen acres; that in 1906 he had the land assessed to an unknown owner with the intention of buying the tax certificate, but that Sowden "beat him to it." He afterward redeemed the tax certificate and paid to the county treasurer the sum of $ 23.98, and the treasurer issued to him a printed certificate dated June 7, 1909, for the sum paid and a description of the land, and that the same was assessed...

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3 cases
  • Smith v. City of Nampa, 409
    • United States
    • Idaho Supreme Court
    • May 15, 1937
    ...taxes or redeeming from tax sale at any time before the property is finally sold by the county. (Sec. 61-1023, I. C. A.; Johnson v. Sowden, 25 Idaho 227, 136 P. 1136; Rice v. Rock, 26 Idaho 552, 144 P. 786.) That is reason for service of the notices required by sec. 61-1027, I. C. A., befor......
  • Meyer v. Schoeffler
    • United States
    • Idaho Supreme Court
    • July 31, 1924
    ... ... Linder, 21 Idaho 576, Ann. Cas. 1913E, 148, 123 P. 487, ... 42 L. R. A., N. S., 242; Cramer v. Walker, 23 Idaho ... 495, 130 P. 1002; Johnson v. Sowden, 25 Idaho 227, ... 136 P. 1136; Trask v. Success Min. Co., 28 Idaho ... 483, 155 P. 288; Dickerson v. Hansen, 32 Idaho 18, ... 177 P ... ...
  • Stickel v. Carter
    • United States
    • Idaho Supreme Court
    • September 24, 1941
    ... ... the event of the failure of their title, respondent should in ... equity repay them. (Johnson v. Sowden, 25 Idaho 227, ... 136 P. 1136; Pleasants v. Henry, 36 Idaho 728, 213 ... On the ... oral argument respondent suggested waste ... ...

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