Larson v. Peppard

• Decision Date: 18 January 1909
• Parties: LARSON et al. v. PEPPARD.
• Court: Montana Supreme Court

99 P. 136

38 Mont. 128

LARSON et al. v. PEPPARD.

Supreme Court of Montana

January 18, 1909

Appeal from District Court, Missoula County; F. C. Webster, Judge.

Suit by Margaret Larson, executrix, and others against O. E. Peppard. From a decree granting relief to both parties, plaintiffs appeal. Reversed and remanded.

H. G. & S. H. McIntire, for appellants.

Woody & Woody, for respondent.

HOLLOWAY J.

This action was commenced in the district court of Missoula county by Peter Larson against O. E. Peppard for the purpose of having determined any adverse claim of the defendant to certain pieces and parcels of land situated in the city of Missoula, and claimed to be owned by and in the possession of plaintiff and the heirs at law of one John Woods, deceased. The plaintiff died, and the personal representatives of his estate were substituted as plaintiffs. The complaint is in the ordinary form of actions to quiet title. The prayer is that the defendant be required to set forth the nature of his claim, that it be determined to be without right, and that the defendant be enjoined from asserting any claim to the premises. In addition to other defenses, the answer sets forth that in 1893 the premises in controversy were owned by Larson and Woods, and were assessed by the assessor of Missoula county for taxation to such owners; that the taxes were not paid within the time allowed by law before they became delinquent; that the property was advertised for sale for delinquent taxes; that a sale thereof was had, and at such sale Frank D. Low became the purchaser of the property and received the treasurer's certificate of sale; that in March, 1896, the county treasurer of Missoula county executed and delivered to Low a treasurer's deed for the property that in 1896 Low and his wife executed and delivered to the defendant a quit-claim deed to the property; that from 1894 to 1901 the property was assessed to Low, and from 1902 to 1906 to this defendant; that all the taxes levied upon the property for 1894 and 1895 were paid by Low, and the taxes for 1897 to 1906 were paid by the defendant. The answer prays that, if it be found that the title to the property still remains in Larson and Woods, the defendant be adjudged to have a lien upon the property for the amounts paid by himself and his predecessor. The cause was tried to the court sitting without a jury. A decree was rendered and entered quieting plaintiff's title to an undivided one-half interest in the property, subject to a lien of defendant upon the whole property for the different amounts paid for taxes. From this judgment the plaintiffs have appealed.

It may be conceded that the proceedings taken in connection with the taxes for 1893 were so far irregular that the sale of the property by the county treasurer did not operate to divest Larson and Woods of their title to the property; and it may be conceded, further, for the purposes of this case, that, by reason of such irregularities, neither Low nor Peppard could maintain an action at law to recover back the amounts paid by him. But this is an action prosecuted under the provisions of section 6870, Rev. Codes, and this court has repeatedly held that such an action is one in equity. Montana Ore Pur Co. v. Boston & Montana Con. C. & S. Mining Co., 27 Mont. 288, 70 P. 1115; Mares v. Dillon, 30 Mont. 117, 75 P. 963; North Real Estate L. & T. Co. v. Billings L. & T. Co., 36 Mont. 356, 93 P. 40. Larson, then, having appealed to a court of equity to relieve his property from the outstanding claim of the defendant, the court could properly apply to him the maxim, "He who seeks equity must do equity." The property was subject to taxation. There was at least an attempt made to levy and collect the taxes. Larson and Woods owed the duty to bear their just proportion of the burden of state, county, and city governments. They failed to discharge the duty in this instance, and Peppard and his predecessor discharged it for them, under the mistaken belief that they thereby acquired an interest in the property. The payments made were not voluntary, in the sense that they were made merely to discharge the obligations of Larson and Woods. But in a case of this character the particular inquiry which the court makes is to ascertain whether the property was in fact subject to taxation; whether the proceedings were so far in compliance with the law that the court can say that the landowners should have paid the taxes, and that such taxes were their just contributions toward the support of government. If these facts appear, then equity will compel the tardy landowners to do that which they should have done in the first instance-pay the taxes. It is certainly not imposing upon them any unreasonable or unjust burden to require them to bear their just proportion of the expense of government. No reason is suggested why these particular parties should be relieved from the payment of any taxes whatever upon this property for 16 or 17 years. When Larson applied to the district court, sitting as a court of equity to quiet the title to his property as against any claim of the defendant, and it appeared that the defendant's claim rested upon the payment of taxes under the circumstances of this case, the court in effect said to him: "You and your co-owner ought to have paid the taxes on this property, and, as a condition precedent to your having such property free from any claim made by the defendant by reason of his having paid the taxes which you ought to have paid, you must now discharge your duty, as nearly as can be done, by paying the amounts to this defendant, together with legal interest thereon."

The authorities are not entirely in harmony upon this subject. Some of the courts deny the right to impose any condition whatever; but the rule adopted by the trial court, and which is approved in principle, has the support of many courts and text-writers, and, in our opinion, is right and ought to prevail in this state.

The assessment and sale of property for delinquent taxes is a proceeding in invitum. The purchaser at such sale buys at his peril, and the rule of caveat emptor applies (Birney v. Warren, 28 Mont. 64, 72 P. 293); but the mere fact that the rule of caveat emptor applies is not any ground for relieving the landowners from the payment of burdens for which the land was in fact responsible, without first requiring such landowners to do that which they ought to have done. "The owner comes into a court of equity, asking that he be relieved from tax proceedings which he claims to be illegal. Before his prayer should be granted, he should do equity himself, and reimburse the tax purchaser." Powers v. First National Bank, 15 N.D. 466, 109 N.W. 361.

In a very large number of jurisdictions it has been held that in a suit to quiet title or to determine adverse...