McCarthy v. Union Pac. Ry. Co.

• Citation: 58 Wyo. 308,131 P.2d 326
• Decision Date: 24 November 1942
• Docket Number: 2226
• Parties: McCARTHY v. UNION PAC. RY. CO. ET AL
• Court: United States State Supreme Court of Wyoming

131 P.2d 326

58 Wyo. 308

McCARTHY v. UNION PAC. RY. CO. ET AL

No. 2226

Supreme Court of Wyoming

November 24, 1942

APPEAL from the District Court, Carbon County; V. J. TIDBALL, Judge.

Action by Nellie McCarthy against the Union Pacific Railway Company Elizabeth C. Hayes and others to quiet title to certain land in which defendant Hayes filed a cross-petition to quiet title in her. Judgment for plaintiff, and defendant Hayes appeals.

Reversed and Remanded.

For the appellant, there was a brief and an oral argument by Harold M. Johnson of Rawlins.

This action was brought by plaintiff, Nellie McCarthy, against appellant and others, to quiet title to lands described in her petition. The controversy involves the validity of a tax deed. The trial court found in favor of plaintiff. Appellant contends that she is the owner of the property, and that plaintiff's tax title is void: (1) Because the property was not assessed in the name of the record owner; (2) That the assessment roll was not certified by the County Assessor at the proper time; (3) That the notice of tax sale was not in accordance with the statute; (4) That the tax sale was premature; (5) That there was not sufficient notice of the time of the period of redemption as contemplated by law. Davis v. Minnesota Baptist Convention (Wyo. ) 16 P.2d 48; Barrett v. Barrett (Wyo.) 23 P.2d 857; 26 R. C. L. 358; 61 C. J. 634; Section 30-306, W.R.S. 1931; 115-123, R. S., Copper Company v. Rambler Corp., 34 Wyo. 304; Hecht v. Boughton, 2 Wyo. 385; 61 C. J 1317. Appellant is not estopped from objecting to the tax proceeding. State v. Valley Live Stock Land Company (Nev.) 25 P. 448; O'Neal v. Bridge Co. (Md.) 79 Am. Dec. 669; Petroleum Company v. Murrel (La.) 53 So. 705. Every step in the tax proceeding from the assessment to the sale must be regularly taken. Cooley on Taxation, 2d Ed. 820. The assessor must certify the assessment roll. Sidlo v. Phillips (Wyo.) 49 P.2d 243. The assessor must affix his oath to the assessment roll while it is in his possession. Sec. 30-306, R. S. The rule applies even where the assessor succeeds himself in office. 22 R. C. L. 458; 46 C. J. 1033. Appellant was the record owner at the time the property was sold. The notice of sale must be in accordance with Chapter 53, Laws 1933; 61 C. J. 1179, 1182; Copper Co. v. Rambler Corp., 34 Wyo. 304. The tax sale was premature in that it was held without a sufficient lapse of time between the date of sale and the date of first publication of notice of sale. 26 R. C. L. 734; Chapter 53, Laws 1933; 62 C. J. 905; Wood v. Cowan (Utah) 250 P. 979. The sale is void for the further reason that notice of the time of expiration of the period of redemption was not given as required by law. Sec. 115-2343, R. S. 1931; Chapter 72, Laws 1933. Notice of expiration of time of redemption was not served upon the corporation in actual occupancy of the land. Burns v. State, 25 Wyo. 491. The evidence shows that at least five of the mandatory steps in the tax proceedings were either omitted or so erroneously carried out that the legal effect is the same as though they had been omitted altogether. The judgment of the trial court should be reversed.

For the respondent, there was a brief and an oral argument by John J. Hickey of Rawlins.

The record shows that Madden brothers had a proper place in the chain of title. Blakeslie v. Blakeslie (Ill.) 160 N.E. 470. The oath required by statute to be made by the assessor may be attached to the assessment roll at any time before sale. The failure of the assessor to attach his warrant to a properly certified assessment roll does not invalidate the sale. Jones v. Nowells, 37 Wyo. 405. The record shows that Madden brothers bore a relationship to the real parties in interest. Where the evidence shows that actual notice of the proceedings can be attributed to the parties, the tax deed will stand. As to the contention of appellant, that sufficient time had not elapsed from the time of the first publication to the date of sale, we refer the court to Section 89-105, R. S. 1931; Peterson v. Spaugh, 31 Wyo. 30; White v. Hinton, 3 Wyo. 754; 28 Ency. L. 2d Ed., 211. No irregularity of informality in the advertisement shall affect the legality of the sale. Section 115-2326, R. S. 1931; Investment Company v. Mallin, 25 Wyo. 384, et seq. However, considering the whole statute affecting this subject, the failure to name Elizabeth C. Hayes in the notice of tax sale would not render the sale void. The record shows that the provisions of Section 115-2343, R. S. 1931 were complied with. While the Savage Livestock Company had leased the property from M. S. Madden, as Agent for E. C. Hayes, the lease was not of record. The property was ranch land and there was no visible occupant thereof. Service upon said lessee was not therefore required. Appellant was given ample opportunity to redeem the property but failed to do so. Respondent is an innocent third party and subsequent purchaser, and believes that she is entitled to a decree quieting her title to the property.

Harold M. Johnson in reply.

Respondent's brief cites no authority tending to substantiate her position. The case seems to be governed by the decision in Davis v. Convention (Wyo.) 16 P.2d 48. The statutes of this state are clear in commanding the assessor to assess property in the name of the owner thereof. Sections 30-306 and 115-123, R. S. 1931; Copper Company v. Rambler, 34 Wyo. 304; Hecht v. Boughton, 2 Wyo. 385. Ownership must be determined upon the records of the County Clerk's office. People whose property is taken from them for the non-payment of taxes have a right to insist that the proper officers fulfill their duties in relation to all matters pertaining to the tax proceedings required by statute. There is no rule for balancing equities in cases involving tax titles. No property shall be sold for taxes except in the manner provided by the laws of the State of Wyoming. Sec. 115-2303, R. S. 1931; Chapter 72, Laws 1933. There is no evidence that appellant had actual knowledge of the tax proceedings. She was not bound by notice given M. S. Madden, even conceding that he was her agent. In re Safe Deposit Company of Baltimore, 94 A. 93. We have been unable to find any opinion or case where this court has held that actual knowledge of tax sales or proceedings in connection therewith cure patent defects in the tax proceedings, and we are inclined to believe that none exist. Statutory notice is required. 61 C. J. 1117. Respondent is not an innocent third party. 61 C. J. 1321. The doctrine of caveat emptor applies. 61 C. J. 1328. The time for notice of sale is jurisdictional. 61 C. J. 1185. The provision that the first insertion of notice shall be at least four weeks before the day of sale, required by Section 115-2322, R. S., is not qualified by the general rule for computation of time within which an act may be done. We contend that notice must be served upon the occupant of the land. 54 A. L. R. 768; Bradley v. Brown (Iowa) 39 N.W. 258. Notice of redemption was not received by the appellant. Notice to her agent does not impute notice to her. Abramatis v. Amos (Md.) 96 A. 554.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action brought by plaintiff Nellie McCarthy against Elizabeth C. Hayes and others to quiet title to the following property situated in Carbon County, Wyoming, namely:

All of Sections Nineteen (19) and Twenty-three (23) South of the Union Pacific Railroad and all of Sections Twenty-five (25), Twenty-seven (27), Twenty-nine (29), Thirty-one (31), Thirty-three (33), and Thirty-five (35) and twenty-four (24) acres in the South Half (S/2) of Section Twenty-one (21) all in Township Twenty-one (21), North of Range Eighty-Six (86), West of the Sixth (6) Principal Meridian in the County of Carbon, State of Wyoming as platted and recorded in the office of the County Clerk and Ex-Officio Register of Deeds in and for the said County of Carbon,

containing about 4617 acres of land. The property was conveyed by the Union Pacific R. R. Company in 1920, subject to coal and mineral rights, to Mark F. Madden and Michael S. Madden, by deed duly recorded. In 1926 Mark S. Madden conveyed his interest therein to Michael S. Madden, by deed duly recorded. In the early part of 1933, Michael S. Madden conveyed the land to Elizabeth C. Hayes, the appellant herein, by deed duly recorded. Plaintiff claims under a tax title, on account of the non-payment of taxes for 1932. In that year the land was assessed in the name of "Madden Bros." for the sum of $ 5770. The taxes remaining unpaid, and notice having been published, the land was, on August 24, 1933, sold to Carbon County for $ 149.32, the amount of the taxes, penalty interest and costs then due. No redemption having been made, the county treasurer of Carbon County, on April 12, 1937, sent notice addressed to "Madden Bros." at 140 So. Durham St., Chicago, Illinois, and to whom it may concern, that the time for redemption would expire on August 25, 1937, in default of which a tax deed would be issued to the county at that time. The envelope containing the notice was addressed to Elizabeth C. Hayes, the appellant herein, and receipt of the letter was acknowledged by "Elizabeth C. Hayes by M. S. Madden," on April 16, 1937. No redemption having been made, a tax deed was accordingly issued to the county, which in turn, in September, 1937, sold the land to one R. A. Hakala. Plaintiff claims through him. The defendant Elizabeth C. Hayes, owner under the deed from Michael S. Madden, claims that the tax title above mentioned is invalid for the reasons hereinafter mentioned, and in a cross-petition filed herein, she offered to pay the taxes due, and asked that the title...