Matthews v. Blake

• Decision Date: 02 November 1907
• Parties: MATTHEWS v. BLAKE
• Court: Wyoming Supreme Court

92 P. 242

16 Wyo. 116

MATTHEWS v. BLAKE

Supreme Court of Wyoming

November 2, 1907

ERROR to the District Court, Crook County, HON. CARROLL H PARMELEE, Judge.

Reversed.

Van Cise & Grant and Metz & Sackett, for plaintiff in error.

To give a tax deed any semblance of validity in states having no statute of presumption, every successive step in the tax proceedings must be pleaded and proven. (Black Tax Titles 155, 443, 446; Norris v. Hall (Mich.), 82 N.W. 832; Hecht v. Boughton, 2 Wyo. 385; Wolcott v Holland, 27 O. C. C., 71; 2 Cooley Taxation, 916, 1004.) Assessment is the jurisdictional pre-requisite to taxation. The property must be correctly described to validate a tax sale. (Black Tax Titles, 112; Matthews v. Nefsy, 13 Wyo. 458; Van Cise v. Carter, 9 S.D. 234; Moon v. S. L. Co. (Utah), 76 P. 222; Kruse v. Fairchild (Kan.), 85 P. 303; Alleman v. Hammond (Ill.), 70 N.E. 661; O'Day v. McDonnell (Mo.), 80 S.W. 895; Brown v. Reeves (Ind.), 68 N.E. 604; City v. Farrar, 89 N.Y.S. 1035; Smith v. Brothers (Miss.), 38 So. 353; Paine v. Trust Co., 136 F. 527; N. P. Ry. Co. v. Kurtzman, 82 F. 243; Stout v. Mastin, 139 U.S. 151; Bird v. Benlisa, 142 U.S. 664; 1 Cooley on Taxation (3d Ed.), 597.) Assessment in the wrong name is invalid and a sale passes no title. (Hecht v. Boughton, 2 Wyo. 285; Ferguson v. Kaboth (Ore.), 73 P. 200; Brown v. Hartford (Mo.), 73 S.W. 140; Jungk v. Snyder (Utah), 78 P. 168; Bird v. Benlisa, 142 U.S. 664; Rich v. Braxton, 158 U.S. 375; Marx v. Hanthorn, 148 U.S. 172; Black on Tax Titles, Sec. 105; 1 Cooley on Taxation (3d Ed.), 729.) Levy is a jurisdictional fact to be pleaded and proven. (R. S. 1887, Sec. 3822; Black Tax Titles, 205, 213; 2 Cooley The so-called description in the tax list amounts to none at all, being all abbreviated, and without anything to indicate what denomination is intended by the figures denoting valuation, whether dollars or cents. (Moran v. Thomas (S. D.), 104 N.W. 212; Turner v. Hand Co., 11 S.D. 346; Power v. Larrabee, 2 N. D., 141; Power v. Bowdle, 3 N. D., 107; Keith v. Hayden, 26 Minn. 212; Kern v. Clarke, 60 N.W. 809; Black on Tax Titles, Sec. 114.) A warrant for collection is imperative. (R. S. 1887, Secs. 3807-8; 1 Cooley Tax'n., 793) There should have been evidence of the filing of a delinquent list. (Noble v. Amoretti, 11 Wyo. 230.) Publication of notice of sale is jurisdictional. (R. S. 1887, Sec. 3822; Black Tax Titles, 205, 213; Cooley Tax'n., 928.) So a posting of notice of sale on the court house door. (Black Tax Titles, Sec. 213; 2 Cooley Tax'n., 928; Shepherd v. Kahle (Wis.), 97 N.W. 506.) A tax sale without notice, or on a defective notice, is void as made without jurisdiction. (Williams v. Chaplin (La.), 36 So. 859; Fennimore v. Bootner (La.), 36 So. 860; Lambert v. Shamway (Colo.), 85 P. 89; McKinnon v. Nixon (Ala.), 29 So. 690; Martin v. Barbour, 34 F. 701; 2 Cooley Tax'n., 929-30.)

The tax deed was void on its face: (a) The attempted description by meaningless abbreviations. (b) A sale of non-contiguous tracts en masse would render such a sale void, and any deed pursuant thereto void. (Black Tax Titles, Secs. 260, 401; Cornelius v. Ferguson, 16 S.D. 113; Smith v. Williams, &c., Co. (Mo.), 73 S.W. 315; Manker v. Peck (Kan.), 81 P. 171.) (c) A sale for more than the taxes due. (Black Tax Titles, Secs. 230, 232; Baker v. Kaiser, 126 F. 317; Pinkerton v. Land Co. (Wis.), 95 N.W. 1089; Green v. McGraw (Ind.), 72 N.E. 1049; Younglove v. Hackman, 43 Ohio St. 69; Wills v. Austin, 53 Cal. 152; Riverside Co. v. Howell, 113 Ill. 256; Gage v. Pumpelly, 115 U.S. 454.) (d) Acknowledgment before a notary public instead of the clerk of the district court was a plain violation of law, and rendered the instrument void. (R. S. 1887, Sec. 3832; Grattan v. Land Co. (Mo.), 87 S.W. 37; Green v. McGraw (Ind.), 72 N.E. 1049; State v. Harman (W. Va.), 50 S.E. 828; Leftwich v. Richmond (Va.), 40 S.E. 651; Essex v. Meyers, 62 N.E. 96; Salmer v. Lathrop, 10 S.D. 216, 225-6; Gue v. Jones, 25 Neb. 634; Reed v. Merriam, 15 Neb. 323; Black Tax Titles, Sec. 393; 27 Ency. L. (2d Ed.), 964)

The special statute of limitations (R. S. 1899, Sec. 1861) runs only upon a sale regularly made under the forms of law, and from the time of the deed, rather than the previous sale. But, whether running from the deed or sale is immaterial, since the deed being void on its face the statute was not set in motion. (Black Tax Titles, Sec. 497-8; 127 Ency. L. (2d Ed.), 988; Dickinson v. Imp. Co., 92 S.W. 21; Martin v. Barbour, 140 U.S. 634; Gomer v. Chaffee, 6 Colo. 314; Brinker v. Ry. Co., 11 Colo.App. 166; Bird v. Benlisa, 142 U.S. 664; Krans v. Montgomery, 114 Ind. 103; Gibson v. Kueffer (Kan.), 77 P. 282; Marshall v. McDaniel, 75 Ky. 378; Welsch v. Augusti, 52 La. Ann., 1949; Pennington v. Jones, id., 2025; Scott v. Perry, 32 So. 188; George v. Cole, 33 So. 784; Mellandon v. Gallagher, 29 So. 307; Housen v. Manberret, 28 So. 167; Rohlman v. Glandi, 27 So. 116; Leseigneur v. Bessan, 26 So. 865, 872; Williams v. Oleson, 141 Mich. 580; Pearce v. Perkins, 70 Miss. 276; Zingerling v. Henderson, 18 So. 432; Smith v. Cooperage Co., 73 S.W. 315; Zink v. McManus, 121 N.Y. 259; Roberts v. Bank, 8 N. D., 264; Sweigle v. Gates, 84 N.W. 481; Lee v. Crawford, 88 N. W, 97; Lewis v. Blackburn, 69 P. 1024; Turner v. Hand Co., 11 S.D. 348; Stokes v. Allen, 15 S.D. 421; Salmer v. Lathrop, 10 S.D. 216; Horswill v. Farnham, 16 S.D. 414; Moran v. Thomas, 104 N.W. 212; Jackson v. Bailey, 104 N.W. 268.)

M. Nichols, for defendant in error.

The special six-year statute of limitations (R. S. 1899, Sec. 1861) runs from date of sale. (Mitchell v. Etter, 22 Ark. 178; Gomer v. Chaffee, 6 Colo. 314; McDongall v. Monlezum, 39 La. Ann., 1005; 27 Ency. L., 986.) It was not necessary that defendant show perfect title in himself, but that he was in possession under a tax sale. (Russell v. Lang, 23 So. (La.), 113; Michel v. Stream, 19 So. 2; Kaiser v. Harris, 63 Miss. 590; McLaren v. Moore, 60 Miss. 376; Mayer v. Peebles, 58 Miss. 628; Cogburn v. Hunt, 57 Miss. 861.) Defects in the assessment are immaterial after the running of the statute. (Pratt v. Milwaukee (Wis.), 68 N.W. 392; Knox v. Cleveland, 13 Wis. 245; Oconto Co. v. Jerrard (Wis.), 50 N.W. 591.) Before the plaintiff under any circumstances could oust the defendant he must pay all taxes that have been assessed against the land, or offer to do so. (Black v. Johnson, 64 P. 988 (Kan.); Ward v. Huggins, 48 P. 240.)

Plaintiff cannot in any event recover rent when he has paid no taxes. One in possession of land under a tax deed need not account for rent until the taxes are paid or tendered. (Ritchie v. Will, 58 P. 118 (Kan.); Uhl v. Small, 39 P. 178 (Kan.); Lewis v. Knowlton, 86 N.W. 875; 85 N.W. 848 (Minn.)

As a rule an acknowledgment is no part of the deed, and a deed is good as between the parties if not acknowledged at all. And in this case plaintiff is too late to complain. The deed is sufficient upon its face to entitle the defendant to the protection of the special statute of limitation. If the plaintiff was seeking to recover in a court of equity he would be barred on account of his laches, and in law he is barred by the statute. He bought simply for speculation and is not entitled to recover as an innocent purchaser. There is a legal as well as a moral obligation upon the owner of lands to pay taxes regardless of an assessment. (Couts v. Cornell (Cal.), 82 P. 194.)

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

The plaintiff in error, who was plaintiff below, brought this action against the defendant in error, who was defendant below, to recover possession of certain real estate and damages for the alleged wrongful detention of the same by the defendant. The petition is in the usual form for an action in ejectment. The defendant's answer consists first of a general denial, and, second, claiming to hold the land and to be entitled to possession thereof by virtue of a tax deed and tax sale. The sale of the land for taxes is alleged to have occurred January 3, 1891, for the taxes of 1890, and the tax deed under which defendant claims is alleged to have been executed March 19, 1893.

It is alleged in the answer that the defendant and those under whom he claims have been in actual possession of the land for more than ten years; and he pleads both the general and special statutes of limitations. The plaintiff replied denying the new matter set up in the answer, and alleged that the tax sale and tax deed under which defendant claimed were void.

Upon trial in the district court, without a jury, the court found as to the north half of the southeast quarter of section 13, in township 54 north, of range 62 west; and lot 3 of section 18, in township 54 north, of range 61 west of the 6th principal meridian (which is the only land in controversy on this appeal), that "the plaintiff is barred from recovering the same by the six years' statute of limitations (Sec. 1861, Rev. Stat. 1899) and by defendant's occupancy of the same for more than six years prior to the beginning of this action claiming under a sale thereof for nonpayment of taxes." Judgment was entered accordingly and the plaintiff brings the case here on error.

The only question presented to this court (aside from the sufficiency of the pleading of the statute, which we deem it unnecessary to consider) is the effect of the six years' statute of limitations as contained in Section 1861, R. S 1899, as applied to the facts in this case. That section reads as follows: "No action for the recovery of real property, sold for nonpayment of taxes, shall be maintained unless the same be brought within six years after the date of sale for taxes aforesaid." No attack is here made upon plaintiff's title or his...