Lawyer v. Sams

• Decision Date: 15 November 1951
• Docket Number: No. 7803,7803
• Citation: 237 P.2d 606,72 Idaho 101
• Parties: LAWYER et al. v. SAMS et ux.
• Court: Idaho Supreme Court

Page 606

237 P.2d 606

72 Idaho 101

LAWYER et al. v. SAMS et ux.

No. 7803.

Supreme Court of Idaho.

Nov. 15, 1951.

Paul C. Keeton and Paul W. Hyatt, Lewiston, for appellants and cross-respondents.

Thomas A. Madden and Edward C. Butler, Lewiston, for respondents and cross-appellants.

PORTER, Justice.

For convenience we will hereinafter refer to the parties as plaintiffs and defendants. On and prior to January 2, 1932, plaintiff, Corbett Lawyer, was the record title owner of certain real property located near Lapwai in Nez Perce County. Upon said date, a tax deed to such property was issued to Nez Perce County by its Treasurer and Ex-Officio Tax Collector for delinquent taxes for the year 1927. On July 14, 1932, Nez Perce County sold said real estate at public sale to defendant, J. E. Sams, for the sum of $296.68 and executed and delivered its deed to Sams. Whereupon defendants took possession of the property and have remained in possession thereof.

On March 25, 1933, plaintiffs commenced this action against defendants to quiet title as against said tax deeds. Defendants answered, claiming title by virtue of the deed from Nez Perce County. On September 11, 1950, plaintiffs filed a supplemental complaint praying that defendants be required to account for all rentals and profits from the premises. For reasons undisclosed by the record, the cause did not come on for trial until December 19, 1950. At the close of the trial, the court duly made and entered findings of fact and conclusions of law and entered judgment decreeing both the above mentioned tax deeds void and of no effect, quieting title to the premises in the plaintiffs, and granting judgment to defendants for the purchase price, with accrued interest, in the sum of $627.35. No costs were allowed to either party. From such judgment, defendants have appealed to this court. Plaintiffs have cross-appealed from that part of the judgment granting judgment to defendants for $627.35, and from the failure to grant plaintiffs their costs.

The specifications of error by defendants attack the judgment of the trial court decreeing the tax deed to Nez Perce County and the deed from Nez Perce County to defendant, Sams, to be null and void and of no force and effect. The validity of such deeds turns upon the question of whether the Treasurer and Ex-Officio Tax Collector of Nez Perce County served upon plaintiff, Corbett Lawyer, the required legal notice that unless said real estate was redeemed prior to the 2nd day of January, 1932, a tax deed would issue to Nez Perce County.

The law, as to service of notice, in effect at the time involved in this action, is contained in Chapter 181, 1931 Session Laws, page 298, the material part of which reads as follows: 'The county treasurer as ex-officio tax collector shall serve or cause to be served either by personal service or registered mail with return receipt demanded, written or printed or partly written and partly printed notice on the person or persons in whose name the land or lot stands upon the records in the recorder's office. Said notice shall be served at least three months and not more than five months before the date upon which tax deed will issue. And shall be served personally, if by diligent search and inquiry said record title owner can be found within the county; otherwise, said notice shall be served by registered mail; provided, however, that when the board of county commissioners of any county shall determine by resolution spread upon their minutes that the expense of personally serving any record owner will be so great as not to warrant the same, they may direct the treasurer to make service upon said record owner by registered mail as herein provided.'

Defendants' Exhibit No. 4 is a resolution of the board of county commissioners of Nez Perce County, adopted August 11, 1931, purportedly made in pursuance of the 1931 Legislative Enactment. It reads as follows:

'Whereas, due and legal notice for failure to pay taxes for the year 1927 was given in the year 1931 'Whereas, the legislature extended the time for paying 1927 taxes from three to four years;

'Whereas, under and by virtue of the said amendment extending said period of redemption, it will be necessary to again serve said owners of said real property and those interested therein; and,

'Whereas, no funds for such services were provided for in the 1930 budget and personal service and posting of notices will entail considerable expense for which no funds are available, and actual notice of said delinquency can be given by using the United States mail.

'Now Therefore, in consideration of the premises, be it resolved that the treasurer of Nez Perce County, Idaho be, and she is hereby instructed and directed to make service of all real property owners and those interest--therein whose taxes for the year 1927 are unpaid by mailing a copy of said notice to all record owners and those entitled to notice thereof, which notice shall be registered with a return receipt requested, as provided in Chapter 181, 1931 Idaho Session laws.'

The tax collector's affidavit regarding service of notice upon plaintiff, Corbett Lawyer, was filed December 31, 1931. The material part of the affidavit is as follows: 'Affiant further says, that on August 21, 1931, in accordance with the resolution of the County Commissioners, she caused a partly printed and partly written notice to be sent to Corbett Lawyer at Lapwai, Idaho, by registered mail with a return receipt demanded. On August 24, 1931, affiant received said return receipt signed Corbett Lawyer as addressee by Ted Allman as addressee's agent, with the date of delivery shown as August 22, 1931. Said notice stated that Nez Perce County, Idaho, by operation of law became the purchaser of the Tax Lien on the second day of January, 1928, that the property was assessed in the name of Corbett Lawyer, that the property was taxed for the year of 1927 and that unless said property was redeemed prior to the second day of January, 1932, Nez Perce County, Idaho, would demand a deed for the property, as provided by law.'

The evidence discloses that the Ted Allman mentioned in the affidavit of the tax collector, was the young nephew of Mrs. Sams, residing in the home of plaintiffs. Both plaintiffs testified they never received the notice and the court so found. The court further found that at the time in question, plaintiffs were living at Lapwai in ...