McGowan v. Elder

• Decision Date: 31 December 1910
• Citation: 113 P. 102,19 Idaho 153
• Parties: S. R. H. MCGOWAN and GEORGE G. PICKETT, Respondents, v. D. S. ELDER, Appellant
• Court: Idaho Supreme Court

113 P. 102

19 Idaho 153

S. R. H. MCGOWAN and GEORGE G. PICKETT, Respondents, v. D. S. ELDER, Appellant

Supreme Court of Idaho

December 31, 1910

TAX SALE-CERTIFICATE OF SALE-VALIDITY-TAX DEED-RECITALS-VALIDITY.

(Syllabus by the court.)

1. Rev Codes, sec. 1759, which provides, among other things "after receiving the amount of taxes and costs, the collector must make out in duplicate a certificate dated on the day of sale," is directory, and is substantially complied with, and the tax sale certificate when dated on the day subsequent to the day of sale is not void.

2. Where it appears that real property offered at a tax sale has been legally assessed, and the sale legally made, and the purchaser is entitled to a tax sale certificate, the fact that the auditor in issuing such tax certificate dates the same subsequent to the date of the tax sale does not render such tax certificate void, as a substantial compliance with the statute is sufficient.

3. Where a tax sale certificate, among other things, recites "and that unless redeemed within three years from the date of sale, the purchaser will be entitled to a deed," and the deed thereafter issued among other things recites "And whereas no person has redeemed the property so sold during the time allowed by law for its redemption, and it appearing that G. G. Pickett was on the 10th day of July, 1907, entitled to a deed for the premises so sold as above set forth," the language thus used in the deed is a substantial compliance with the language used in the certificate, and sufficiently states that the property has not been redeemed, and that the holder of the certificate of sale is entitled to a deed therefor.

4. The fact that the county auditor in issuing a tax deed recites the amount for which the property was sold, and adds to such amount one dollar for auditor's and collector's fees, in a case where the property is sold to the county, does not render the tax deed thus issued void, notwithstanding the fact that the auditor is not authorized to make the charge of one dollar for fees where the sale is made to the county.

5. Where property is the subject of taxation, and the assessment has been legally made, and there is a default in the payment of such taxes, and the property is sold at tax sale in accordance with the pro- visions of the statute, such property cannot thereafter escape taxation through some failure of the officer to perform his duty unless it has actually misled the party to his injury.

6. A tax deed which recites "that at said auction, there being no bidder, Latah county, state of Idaho, by virtue of law, became the purchaser of said land, or lot, for the taxes, costs and charges due thereon, which taxes, costs and charges amounting to $11.33," states substantially the same thing as is stated in the certificate of tax sale, wherein it is recited "the property was struck off to the said Latah county, who paid the full amount of said taxes, penalties, costs and charges," and such deed is not void.

7. Where a certificate of tax sale contains the assignment thereof in the following language, "Sold to G. G. Pickett this 1st day of February, 1907, Axel P. Ramsted, Auditor, by G. F. Walker, Deputy," and the deed thereafter issued recites, "And whereas the said Latah county, state of Idaho, under and by virtue of the laws of the state of Idaho, has sold its Certificate of Sale No. 487, and all its rights thereunder, unto the said party of the second part, as appears from said certificate of sale and assignment thereof now on file in the tax collector's office in said county," such recital in the deed in substance contains the same matter as is covered by the indorsement, and clearly shows the assignment by the county, and to whom, and such deed is not void because it does not contain an exact copy of the indorsement of the assignment upon the certificate.

8. Where it is admitted or proven that property is subject to taxation, and correctly and legally assessed, and that such assessment is not paid, and that the property was sold for such delinquent taxes in accordance with law, and the owner neglects to pay subsequent assessments made against said property prior to the expiration of the statute limiting the period of redemption, and a tax deed is thereafter issued to the purchaser, or assignee of the purchaser, such deed will not be set aside on the ground that the officer issuing the same did not strictly follow the language of the statute in reciting in such deed the literal language used in the tax sale certificate, as a substantial compliance with the statute is sufficient.

APPEAL from the District Court of the Second Judicial District of the State of Idaho, in and for Latah County. Hon. Edgar C. Steele, Judge.

Action to quiet title. Judgment for plaintiffs. Defendant appeals. Affirmed.

Judgment affirmed. Costs awarded to respondents.

Morgan & Morgan, for Appellant.

The tax deed must contain substantially the matters contained in the tax sale certificate. (Secs. 1763, 1764, Rev. Codes; De Frieze v. Quint, 94 Cal. 653, 28 Am. St. 151, 30 P. 1; Anderson v. Hancock, 64 Cal. 455, 2 P. 31; Hughes v. Cannedy, 92 Cal. 382, 28 P. 573; Grimm v. O'Connell, 54 Cal. 522.)

A tax deed which shows as part of its consideration an item not provided for by law is void. (Sec. 1752, Rev. Codes; Simmons v. McCarthy, 118 Cal. 622, 50 P. 761; Moon v. Salt Lake County, 27 Utah 435, 76 P. 222.)

A tax deed based upon a consideration less than the cost of redemption and less than the officers were authorized to accept is void. (Sec. 1774, Rev. Codes; Douglass v. Lowell, 60 Kan. 239, 56 P. 13; Wilks v. De Hart, 78 Kan. 217, 95 P. 836.)

If the error results from the failure of the officer to compute interest upon some item which should have been included, no matter how small the item be, the failure will, nevertheless, render a deed void. (Wilks v. De Hart, supra; Troyer v. Beedy, 79 Kan. 502, 100 P. 476.)

G. G. Pickett, for Respondents.

"Substantial compliance with the requirements of law in making assessment is all that is necessary. If property is a subject of taxation, it cannot escape through some technical failure of the officer to perform his duty, unless it has actually misled the party, to his injury." (Co-operative Savings & Loan Assn. v. Green, 5 Idaho 660, 51 P. 771; Bacon v. Rice, 14 Idaho 107, 93 P. 511.)

Every defect pointed out, if a defect at all, becomes such, long after defendant Elder's time for redemption had expired. The rule is that the time fixed for redemption is essentially a statute of limitation. (Meigs v. Roberts, 162 N.Y. 371, 76 Am. St. 322, 56 N.E. 838; Milledge v. Coleman, 47 Wis. 184, 2 N.W. 77; Cooley's Const. Lim., p. 533; 27 Am. & Eng. Ency. of Law, 854, and cases stated; Hewes v. McLellan, 80 Cal. 393, 22 P. 287; Best v. Wohlford, 153 Cal. 17, 94 P. 100.)

The recital of an amount as a consideration in a tax deed less than the amount for which the tax sale was made does not render the deed void. (Jones v. Garden City, 81 Kan. 59, 106 P. 997; Kennedy v. Scott, 72 Kan. 359, 83 P. 972; Burton v. Carrier, 80 Kan. 696, 103 P. 84.)

A tax deed is not rendered void by the fact that the certificate was assigned by the county for slightly less than the amount necessary to redeem, where the discrepancy is occasioned by an error in computation. (Troyer v. Beedy, 79 Kan. 502, 100 P. 476; Branstool v. Gibson (Kan.), 107 P. 770.)

It is only necessary that the tax deed should recite so much of the proceedings subsequent to the execution of the deed by the tax collector to the state as may be necessary to show that the tax collector was authorized as agent for the state to sell and convey the state's previously acquired right to the property. (County Bank v. Jack, 148 Cal. 442, 113 Am. St. 285, 83 P. 705; Flannigan v. Towle, 8 Cal.App. 229. 96 P. 507; Couts v. Cornell, 147 Cal. 560, 109 Am. St. 168. 82 P. 194; Miller v. Henderson, 50 Wash. 200, 96 P. 1053.)

Where the owner of land makes no offer to pay the taxes justly due, equity will not, on account of mere irregularities declare the cancellation of the certificate. (Craig v. Pollock, 5 Dill 449, F. Cas. No. 3335; Wood v. Helmer, 10 Neb. 65, 4 N.W. 968; Hart v. Smith, 44 Wis. 213; MacKinnon v. Auditor, 130 Mich. 552; 90 N.W. 329; 27 Am. & Eng. Ency. of Law, 856, 858.)

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

This is an action to quiet title to a certain tract of land situated in Latah county.

The plaintiffs, respondents here, base their title on a tax sale and tax deed, while the defendant, appellant here, claims title by direct conveyance from one F. C. Smith, to whom said property was assessed, and in whom title rested at the time of the tax sale. The cause was tried and the court found for the plaintiffs. This appeal is from the judgment.

The appellant contends that the tax sale certificate does not conform to the statute, and will not support the tax deed based thereon. Second, that the tax deed does not conform to the statute, and therefore did not pass title to the plaintiff. It is stipulated by counsel that the lands in controversy were subject to taxation for state and county purposes for the year 1903, that being the year of the assessment for which said land was sold for taxes, and that all proceedings leading up to the issuance of the tax sale certificate were regular and legal and strictly in conformity to the laws of the state; that said land was regularly and properly assessed to one Frank G. Smith, to whom a patent had been issued by the United States government, and that thereafter said Smith by warranty deed conveyed said land to the defendant in this action. It further appears that said land was purchased at such tax sale by ...