Lawrence v. Corbeille

• Decision Date: 11 February 1919
• Citation: 178 P. 834,32 Idaho 114
• Parties: J. G. LAWRENCE, Respondent, v. MOISE CORBEILLE, Appellant
• Court: Idaho Supreme Court

178 P. 834

32 Idaho 114

J. G. LAWRENCE, Respondent, v. MOISE CORBEILLE, Appellant

Supreme Court of Idaho

February 11, 1919

TAX SALE-DEED-RES JUDICATA-APPEAL AND ERROR.

1. Lawrence v. Defenbach, 23 Idaho 78, 128 P. 81, in which it was held that the amendment made to Rev. Codes, sec. 1763, Sess. Laws 1912, p. 43, was not intended to apply to execution of tax deed to lands sold for delinquent taxes where the sale had been made and the time for redemption expired and the purchaser was entitled to a deed under the statute before such amendment became a law, affirmed, and Rice v. Rock, 26 Idaho 558, 144 P. 786, distinguished.

2. A judgment entered in an original proceeding in the supreme court, directing that a peremptory writ of mandate issue to compel the issuance of a tax deed which it was the duty of the tax collector to issue under Rev. Codes sec. 1763, is not res judicata as to the validity of the deed when issued, and does not estop the owner of the land to question the validity of the tax deed, although the owner was named as a party defendant in the petition for writ of mandate.

[As to validity and conclusiveness of judgment for taxes, see note in 42 Am.St. 657]

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. R. N. Dunn, Judge.

Action to quiet title. Judgment for plaintiff. Reversed.

Judgment of the lower court reversed and a new trial granted. Costs awarded to appellant.

Black &amp Wernette, for Appellant.

The statute is simply a remedial statute and its provisions do not impair the obligation of the contract. (Rice v. Rock, 26 Idaho 552, 144 P. 786; Curtis v. Whitney, 13 Wall. (U.S. 68, 20 L.Ed. 513, see, also, Rose's U. S. Notes; Coulter v. Stafford, 56 F. 564, 6 C. C. A. 18; State v. Krahmer, 105 Minn. 422, 117 N.W. 780, 21 L. R. A., N. S., 157; Lawrence v. Defenbach, 23 Idaho 78, 82, 128 P. 81.)

The title to property will not be tried in mandate proceedings. (26 Cyc. 157; Gregory v. Blanchard, 98 Cal. 311, 33 P. 199; State v. Williams, 54 Neb. 154, 74 N.W. 396; Commonwealth v. Rosseter, 2 Binn. (Pa.) 360, 4 Am. Dec. 451.)

The lower court erred in not allowing the appellant to introduce his testimony to show the proceedings with regard to the assessment of the land, the failure on the part of the proper officials to carry out the extensions of the delinquent taxes in red ink, and such other matters and things which would affect the title to the land and which would indicate and prove that the tax deeds did not pass good title. (Parsons v. Wrble, 21 Idaho 695, 123 P. 638; Griffith v. Anderson, 22 Idaho 323, 125 P. 218.)

Chas. L. Heitman and G. H. Martin, for Respondent.

Under the law in force at the time of the sale, July 10, 1908, and during the entire three years allowed by law for redemption, no notice was required to be given, and when the three years expired, the respondent's right to a deed became absolute and he became the actual owner of the property, the execution and delivery of the deed only being necessary to vest the bare legal title in him. (White Pine Mfg. Co. v. Morey, 19 Idaho 49, 112 P. 674; Lawrence v. Defenbach, 23 Idaho 78, 128 P. 81; Black on Tax Titles, sec. 175; Merrill v. Dearing, 32 Minn. 479, 21 N.W. 721.)

"The law in being at the time of the sale governs the right of redemption. The time can neither be lengthened nor shortened by subsequent legislation. The right to redeem is a condition attached to the sale, and the legislature cannot defeat it by subsequent act." (Blackwell on Tax Titles, 5th ed., 729; Robinson v. Howe, 13 Wis. 341; Cargill v. Power, 1 Mich. 369; Rollins v. Wright, 93 Cal. 395, 29 P. 58; Haaren v. High, 97 Cal. 445, 32 P. 518; Wilder v. Campbell, 4 Idaho 695, 43 P. 677.)

The rules already announced in the two cases involving this matter are res adjudicata as to this whole controversy, and the law of this case from which no court of this state may depart. (Hall v. Blackman, 9 Idaho 555, 75 P. 608; Phelan v. San Francisco County, 20 Cal. 39, 40; Heinlen v. Martin, 59 Cal. 181; 2 Ency. Pl. & Pr. 371.)

Under the rule of this court, it was necessary that Corbeille be made a party defendant in the mandate proceedings, as he was the real party in interest. He was a necessary party. (Stethem v. Skinner, 11 Idaho 374, 82 P. 451; Cassatt v. Board of Commrs., 39 Kan. 505, 18 P. 517; Livingston v. McCarthy, 41 Kan. 20, 20 P. 478; State v. Akers, 92 Kan. 169, Ann. Cas. 1916B, 543, 140 P. 637; State v. Cranney, 30 Wash. 594, 71 P. 50; Powell v. People, 214, Ill. 475, 105 Am. St. 117, 2 Ann. Cas. 551, 73 N.E. 795; 26 Cyc. 415.)

On the question of res adjudicata, it is immaterial that the questions alleged to have been settled by a former adjudication were determined in a different kind of proceeding or a different form of action from that in which the estoppel is set up, the parties and the issues being the same. (23 Cyc 1221; Southern P. Ry. Co. v. United States, 168 U.S. 1, 18 S.Ct. 18, 42 L.Ed. 355, see, also, Rose's U.S. Notes.)

A judgment in mandamus proceedings operates as an estoppel as to parties and their privies. 23 Cyc. 486.)

And this is true as to all facts concluded by such judgment, that is, all facts which the court must find, in order to determine the plaintiff's right to the writ. (Board of Supervisors v. Thompson, 122 F. 860, 59 C. C. A. 70; Holt County v. National Life Ins. Co., 80 F. 686, 25 C. C. A. 469; O'Connor v. Board of Trustees, 247 Ill. 54, 93 N.E. 124; State v. Hartford St. Ry. Co., 76 Conn. 174, 56 A. 506; Yuen Suey v. Fleshman, 65 Ore. 606, Ann. Cas. 1915A, 1072, 133 P. 803; Weed v. Mirick, 62 Mich. 414, 29 N.W. 78; Hoffman v. Silverthorn, 137 Mich. 60, 100 N.W. 183; People v. Harrison, 253 Ill. 625, Ann. Cas. 1913A, 539, 97 N.E. 1092; Sauls v. Freeman, 24 Fla. 209, 12 Am. St. 190, 4 So. 525; Dimond v. Ely, 28 N.D. 426, 149 N.W. 349.)

It is likewise true as to all defenses which the defendants might have interposed but did not interpose. They are concluded by the judgment as effectually as if pleaded and proof offered in support thereof. (23 Cyc. 1170, 1196, 1295; South Park Commrs. v. Montgomery, Ward & Co., 248 Ill. 299, 21 Ann. Cas. 127, 93 N.E. 910.)

RICE, J. Morgan, C. J., and Steele, Dist. Judge, concur.

OPINION

RICE, J.

This case was before this court on a former appeal (Lawrence v. Corbeille, 28 Idaho 329, 154 P. 495). Reference may be made to the opinion in that case for a statement of the facts disclosed by the record. After the former decision by this court, another trial was had in the district court which resulted in a judgment in favor of Lawrence. A motion for a new trial was denied. This appeal is from the judgment and from the order of the court refusing to grant a new trial.

After the former decision, respondent filed an amended supplemental complaint, alleging that after the commencement of this action respondent had instituted in this court another proceeding for a writ of mandate to be directed against one Andrew Christensen, treasurer and ex-officio tax collector of Bonner county, to require him to issue tax deeds to the land, and that a peremptory writ was thereafter issued out of this court requiring him to execute the deeds.

Appellant was named as a party defendant in the lastmentioned mandate proceedings, together with Christensen. Both defendants appeared and demurred to the petition. The demurrer was overruled, and there was no further answer on the part of either of said defendants.

In his answer to the amended supplemental complaint, appellant denied the validity of the tax deeds issued by Christensen, alleging that they were not obtained as required by Rev. Codes, sec. 1763, as amended by Sees. Laws 1912, p. 43. Appellant further alleged, by way of defense, that no red ink entries were made on the assessment-rolls for the year 1908, as required by Rev. Codes, sec. 1755, and that he was thereby prejudiced in his rights.

At the trial respondent put in evidence the deeds given by Christensen as tax collector and rested his case. Appellant was not permitted by the court to introduce any evidence affecting the validity of the said tax deeds.

In the case of Lawrence v. Defenbach, 23 Idaho 78, 128 P. 81, the tax sale certificates involved in this action were under consideration. It was there held that the respondent in this action was not required to comply with Rev. Codes, sec. 1763, as amended, for the reason that the time within which the owner might have redeemed from these tax sales had expired before the passage of the law, and that the law could not affect the vested rights of the holder of the tax sale certificates.

It is suggested that the case of Rice v. Rock, 26 Idaho 552, 144 P. 786, impliedly, though not expressly, overrules the Defenbach case. Such is not the case, however, for the time of redemption from the tax sale certificates involved in the case of Rice v. Rock did not expire until more than a year after the enactment of the amendment, and the requirements of the amendment were properly held not to interfere with any vested rights of the holder of the certificate in that case. The two cases are not in conflict.

The important question presented by the record is whether the trial court erred in refusing to receive evidence of the failure of the assessor to make certain entries in red ink on his assessment-book for the year 1908, as required by Rev. Codes, sec. 1755. The evidence was relevant to the issues presented by the pleadings, and error was committed, unless in this action the matter must be considered as res judicata. (Parsons v. Wrble, 21 Idaho 695, 123 P. 638; Griffith v. Anderson, 22 Idaho 323, 125 P. 218; Fix v. Gray, 26 Idaho 19, 140 P. 771; Lohr v. Curley, 27 Idaho 739, 152 P. 185.)

It is argued that the judgment in ...