McMasters v. Torsen

• Decision Date: 26 November 1897
• Citation: 5 Idaho 536,51 P. 100
• Parties: McMASTERS v. TORSEN
• Court: Idaho Supreme Court

51 P. 100

5 Idaho 536

McMASTERS v. TORSEN

Supreme Court of Idaho

November 26, 1897

EJECTMENT-WHAT MUST BE ESTABLISHED.-A party bringing an action of ejectment is required to establish, in order to recover, right to possession and possession in plaintiff and ouster by defendant.

QUIA TIMET AND EJECTMENT DISTINGUISHED.-Proof of a state of facts that might entitle a party to recover under the statutory action of quia timet cannot be made available in an action of ejectment.

TAX DEEDS AS TITLE-COURT SHOULD NOT REFUSE RIGHT TO CONTEST.-Where defendant relies upon a tax deed for title, it is error for the trial court to refuse to the plaintiff the right to contest those matters in regard to which the statute makes the tax deed only prima facie evidence.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Reversed and remanded.

Forney Smith & Moore, for Appellant.

Section 1556 of the Revised Statutes of Idaho provides as follows "Such deeds, duly acknowledged or provided [errata says "proved"], is [except as against actual fraud] conclusive evidence of the regularity of all other proceedings from the assessment by the assessor inclusive up to the execution of the deed." And yet in the face of these express provisions, with the tax deeds introduced reciting particularly each and every step required by the statute, and reciting particularly the matters contained in the tax certificates, upon which they were respectively based, and with no evidence whatever to impeach, annul vitiate or overcome the recitations therein contained, the court renders a judgment for the plaintiffs. The Deering's Political Code of California, sections 3786 and 3787, are the same as the sections referred to in the Idaho Code, supra, and the supreme court of that state in Rollins v. Wright, 93 Cal. 397, 29 P. 58, and De Triville v. Small, 98 U.S. 595, has construed these sections.

R. T. Morgan, for Respondent.

As to the question of the effect of a tax deed as evidence under the statute, we cite a case decided by the supreme court of the United States arising originally under the statutes of the state of Oregon, which are similar to ours in this respect, which we think entirely disposes of the question: Marx v. Hanthorn, 148 U.S. 172, 13 S.Ct. 508.

HUSTON, J. Sullivan, C. J., and Quarles, J., concur.

OPINION

HUSTON, J.

This is an action of ejectment. The complaint avers title, the right of possession, and possession by plaintiffs, and ouster and continued withholding of possession by defendant. Upon the trial, plaintiffs offered in evidence, to establish their title, a decree of foreclosure and sale in a case entitled "William McMasters v. Jacob Sigrest et al.," to the introduction of which defendant objected, upon the ground that the same was "incompetent, irrelevant and immaterial," and the further ground that "the complaint does not state facts sufficient to constitute a cause of action," and the further ground that "it is not shown that the plaintiffs have any interest whatever in the judgment or decree, or that the parties plaintiff mentioned are the plaintiffs in this action." This objection was overruled by the court. The plaintiffs then introduced a sheriff's certificate of sale under the decree of foreclosure, and also the assignment of such certificate by the purchaser therein named to the plaintiffs, and a deed from the sheriff upon such certificate to the plaintiffs. To the introduction of all these instruments, objection was made by defendant, upon the ground that they were "incompetent, irrelevant and immaterial." The instruments were admitted by the court, and copies of them appear in the record. We are unable to find any error in the action of the court in their admission. It was not proven or attempted to be proven that the plaintiffs or either of them were ever in actual possession of the premises in question.

The plaintiffs then undertook to prove the possession of the premises in question by defendant; but the only evidence in support of that contention goes simply to the extent that the defendant had or was supposed to have hauled some lumber upon the land. To maintain the action of ejectment, it is essential that the plaintiff allege and prove three things: 1. The right of possession in the plaintiff; 2. Possession in the plaintiff; 3. Ouster of plaintiff by the defendant. The record does not show that any one of these essential facts were proven by plaintiffs. Section 4538 of the Revised Statutes of Idaho provides that "an action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim." We do not understand that this statute does away with the action of ejectment, and the plaintiffs having elected to pursue their remedy by that action, as shown by their complaint, they will be required to make their case thereunder.

As our view of the case will necessitate a retrial, we feel constrained to pass upon some other questions raised by the record, and which may recur upon another trial of the case. The defendant claimed title to the premises in question under certain tax deeds. At the close of plaintiffs' testimony defendant moved to dismiss the action, upon the ground that plaintiffs had failed to show possession of the premises in question by defendant. This motion was overruled by the court,...