Johnson v. Welch

• Decision Date: 24 October 1929
• Docket Number: 5231
• Court: Idaho Supreme Court
• Parties: H. B. JOHNSON, Respondent, v. JUDSON C. WELCH and JOHN O'LEARY, Appellants

281 P. 748

48 Idaho 284

H. B. JOHNSON, Respondent, v. JUDSON C. WELCH and JOHN O'LEARY, Appellants

No. 5231

Supreme Court of Idaho

October 24, 1929

TAXATION-DELIVERY OF TAX DEEDS-NOTICE OF DELINQUENCY-NECESSITY OF PERSONAL SERVICE.

Personal service of notice of delinquency must be made on person in actual possession of land prior to delivery of tax deed under C. S., sec. 3260, and sec. 3258 as amended by 1921 Sess Laws, chap. 232.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon Robert M. Terrell, Judge.

Action to quiet title. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

W. H Holden and T. C. Coffin, for Appellants.

Where property is subject to taxation, a substantial compliance with the requirements of the law in making assessments of taxes, and in the procedure under the statute leading up to the issuing of a tax deed, is all that is required, and the mere failure of the officials to perform the duty required of them by law cannot be taken advantage of by a property owner for the sole purpose of escaping taxation; there must be prejudice and injury to such owner. (Armstrong v Jarron, 21 Idaho 747, 125 P. 170; Stewart v. White, 19 Idaho 60, 112 P. 677; McGowan v. Elder, 19 Idaho 153, 113 P. 102.)

Merrill & Merrill, for Respondent.

A sale of property for delinquent taxes is in the nature of a penalty and if the statutes authorizing such sale are not at least substantially complied with a tax deed issued thereunder is void. (Cooley on Taxation, 4th ed., sec. 1567; Parsons v. Wrble, 21 Idaho 695, 123 P. 638; Beck v. Wilson, 49 Cal.App. 281, 193 P. 158; Pretty v. Warden, 38 Cal.App. 706, 177 P. 489; Hypes v. Nelson, 63 Ind.App. 304, 114 N.E. 459; Trustee Loan Co. v. Botz, 37 N.D. 230, 164 N.W. 14.)

The Idaho statutes require the tax collector to "serve or cause to be served . . . . notice" upon interested parties. This must be personal service and service by registered mail is insufficient. (C. S., sec. 3258, as amended by 1921 Sess. Laws, p. 520; Clemmons v. State, 5 Okla. Cr. 119, 113 P. 238; Chicago, L. S. & S. B. Ry. Co. v. Sanders, 63 Ind.App. 586, 114 N.E. 986.)

GIVENS, J. Budge, C. J., T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.

OPINION

GIVENS, J.

Respondent, as the record title owner, sued to quiet title to real estate. Appellants rely upon two tax deeds. The relationship of the parties prior to the issuance of the tax deeds was substantially as follows: On December 9, 1922, Welch sold the land in controversy to Johnson at which time by agreement between the parties a delinquent tax for 1920 should have been paid by Welch. Thereafter by written contract, Johnson agreed to sell the land to Welch for $ 2,800, Welch orally agreeing as part of the consideration to pay all back and future taxes. Welch did not comply with the terms of the contract but remained in possession until November, 1925. O'Leary purchased the tax deeds, taxes not having been paid by Welch, and in April, 1926, contracted with Welch to sell him the same property for $ 800. At the time of the tax sale, Welch by reason of his contract with Johnson, was obligated to pay the taxes.

The court found on adequate evidence that the treasurer and tax collector, prior to the delivery of the tax deeds, had failed to comply with the statutory requirements (C. S., chap. 144, art. 9, as amended) in the following particulars: no personal notice was given the person in possession of the property; the published notice of delinquent taxes did not correctly describe the real estate sought to be sold; the notice was not published the required length of time; the time of the sale and the period of redemption were incorrectly specified; the date of delinquency was erroneous; no notice of delinquency was posted on the land nor was any legal notice sent the owner of the land; a proper affidavit showing compliance was not filed; the deeds issued were for like reasons held invalid by the trial court.

Appellant urges that there was a substantial compliance and that no injury to the owner or taxpayer was shown, relying on Stewart v. White, 19 Idaho 60, 112 P. 677; McGowan v. Elder, 19 Idaho 153, 113 P. 102; Armstrong v. Jarron, 21 Idaho 747, 125 P. 170; Rice v. Rock, 26 Idaho 552, 144 P. 786.

Rice v. Rock, supra, held the giving of notice of vital importance but the time within which it should be given directory and not mandatory. Thus, if no notice was given, it would be, under the holding of this case, a fatal defect. (See, also, Dickerson v. Hansen, 32 Idaho 18, 177 P. 760; Davidson v. Kepner, 37 N.D. 198, 163 N.W. 831; Davenport v. Doyle, 57 Okla. 341, 157 P. 110; Bean v. Brownwood, 91 Tex. 684, 45 S.W. 897.)

Section 3258, C. S., as amended in chapter 232, 1921 Session Laws, page 520, was in force at the time and provided as follows:

"The tax collector shall serve or cause to be served written or printed or partly written or partly printed notice on the person or persons in actual possession or occupancy of such land or lot and also the person in whose name the same stands upon the records in the recorder's office, if, upon diligent inquiry he can be found in the state, at least three months and not more than five months before the expiration of the time of redemption. . . . If there is no person in the actual possession or occupancy of such land or lot and if the person in whose name it stands, upon diligent inquiry cannot be found in the state, then the tax collector shall post in a conspicuous place upon said land or lot and in a substantial manner a copy of said notice not more than five and not less than three months before such time of redemption shall expire, and shall publish a notice of all such delinquency entries in the...