Meserole v. Whitney
| Decision Date | 28 September 1912 |
| Citation | 127 P. 553,22 Idaho 543 |
| Parties | E. D. MESEROLE, Appellant, v. FRED E. WHITNEY, Respondent |
| Court | Idaho Supreme Court |
TAX SALE-DELINQUENT TAXES-DESCRIPTION OF REAL PROPERTY ON TAX-ROLL.
(Syllabus by the court.)
1. Where real property is owned by Whitney and is a part of section 13, township 1 south, range 6 east, and is described on the assessment-roll as in section 23, and such assessment becomes delinquent and is sold for delinquent taxes by the same description, and is purchased by the county, and thereafter the county issues a deed to said land to Wolfe and Wolfe executes a deed and conveys said property to the wife of Whitney, the owner of said property at the time the assessment of taxes is made, Whitney and wife acquire such property as community property, and such purchase will be recognized as the payment of the taxes upon the property owned by Whitney at the time the assessment is made, and Whitney acquires no new title by reason of the transfer from the county, except an acknowledgment upon the part of the county of the payment of such taxes.
2. Where real property has been purchased by the county at a delinquent tax sale, and the tax certificate is held by the county, or the title is held under a conveyance made by the assessor to the county, such property cannot be assessed as long as the title remains in the county, and where the county sells such property to a person, and such property is assessed for taxes to such person, the assessor in making such assessment had no authority or power to make a double assessment which includes an assessment for the year preceding the transfer of said property by the county to such person.
3. Where a double assessment is made under the provisions of sec. 1681 of the Rev. Codes, and such assessment is not paid and such property is offered for sale for delinquent taxes and sold, and a deed made to the purchaser, and such purchaser relies upon said sale in an action brought against such purchaser to quiet title, and it appears in such assessment that such double taxation is void by reason of the fact that such property was not assessable for one of the years included in such double taxation, and that such assessment is so indefinite and uncertain that it is impossible to separate the assessments for the respective years and determine what part of said taxes was valid and what was invalid, the entire assessment will be held void and the sale and deed based upon such assessment would convey no title.
APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. C. O. Stockslager, Judge.
An action to quiet title. Judgment for defendant. Affirmed.
Judgment of the lower court affirmed. Costs awarded to respondent. Petition for rehearing denied.
B. F. Griffith, for Appellant.
In the absence of anything to show fraud or corrupt motive, errors on the part of an assessor resulting in the unequal valuation of land will not vitiate the tax levied thereon. (West Portland Park Assn. v. Kelly, 29 Ore. 412, 45 P. 901; People v. Barker, 144 N.Y. 94, 39 N.E. 13.)
The taxpayer who discovers errors, irregularities or injustice in his assessment must take steps to have it corrected according to the remedies which the law gives him, and if he neglects to do this when he has an opportunity, he will not be allowed afterward to raise objections to the assessment. (State v. Sadler, 21 Nev. 13, 23 P. 799; Cal. Domestic Water Co. v. Los Angeles Co., 10 Cal.App. 185, 101 P. 547; Eureka Dist. Gold Mining Co. v. Ferry Co., 28 Wash. 250, 68 P. 727; City of Los Angeles v. Glassell, 4 Cal.App. 43, 87 P. 241; Cooley on Taxation, p. 1049.)
Defendant was not prevented from paying the taxes involved in this action by either fraud or mistake of the officer charged with the collection of the taxes, or even by a mistake on his (defendant's) part. (Bacon v. Rice, 14 Idaho 107, 93 P. 511.)
One who takes a conveyance of a tax title can claim no benefit from it if he had actual knowledge of facts which rendered it invalid, or if the records show on their face fatal defects or irregularities. (Sorensen v. Davis, 83 Iowa 405, 49 N.W. 1004; 37 Cyc. 1485.)
The sale of land for taxes is not void where the legal portion of the tax can be clearly and definitely separated from the rest. (Holcomb v. Johnson, 43 Wash. 362, 86 P. 409.)
Where land is sold for the taxes of several years, and a deed made pursuant to such sale, the deed is valid, if the sale is legal for the taxes of one of the years, though it is illegal as to the taxes of the other years. (Parker v. Cochran, 64 Iowa 757, 21 N.W. 13; Rhodes v. Sexton & Son, 33 Iowa 540; Hurley v. Powell, Levy & Co., 31 Iowa 64; Eldridge v. Kuehl, 27 Iowa 160.)
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 etc. Assn. v. Green, 5 Idaho 660, 51 P. 770; White Pine Mfg. Co. v. Morey, 19 Idaho 49, 112 P. 674; Stewart v. White, 19 Idaho 61, 112 P. 677; McGowan v. Elder, 19 Idaho 153, 113 P. 102.)
W. C. Howie, for Respondent.
The whole tax is illegal, for the reason that it is, in effect, an increase in valuation of the property after its assessment without notice to the taxpayer.
Assessment for back years for which taxes had actually been paid would be void. (Western Assurance Co. v. Halliday, 127 F. 830; Adams v. Luce, 87 Miss. 220, 39 So. 418; Douglas v. Short, 14 N.C. 432; Iowa R. Land Co. v. Guthrie, 53 Iowa 383, 5 N.W. 519.)
A purchase at a tax sale by one upon whom rests the duty of paying the taxes operates merely as a payment of such taxes, leaving the title to stand as if the payment had been made before the sale. (27 Am. & Eng. Ency. of Law, 954; Moss v. Shear, 25 Cal. 38, 85 Am. Dec. 94.)
As this 120 acres was sold as Mr. Whitney's land and the county got the money and Mr. Whitney did pay it himself by buying from the party who bought from the county, in good faith, as his land, the land as assessed being treated as being the right assessment and believed at the time by all parties to be the right description, it was certainly improperly back assessed as having escaped taxation. (Hurd v. City of Melrose, 191 Mass. 576, 78 N.E. 302; Graham v. Florida Land & Mortgage Co., 33 Fla. 356, 14 So. 796; Bosworth v. Danzien, 25 Cal. 297; Gunn v. Thompson, 70 Ark. 500, 69 S.W. 261; Lewis v. Monson, 151 U.S. 545, 14 S.Ct. 424, 38 L.Ed. 265; Richter v. Bcaumont, 67 Miss. 285, 7 So. 357; Meller v. Hodsdon, 33 Minn. 336, 23 N.W. 543; Pfeiffer v. Miles, 48 N.J.L. 450, 4 A. 429; San Gabriel Land & Water Co. v. Whitneer Bros. & Co., 96 Cal. 623, 29 P. 500, 31 P. 588, 18 L. R. A. 465; Kellogg v. McFatter, 111 La. 1037, 36 So. 112; Wabash R. R. Co. v. People, 196 Ill. 606, 63 N.E. 1084.)
Wherever property is sold for taxes any part of which is not a proper charge on the property sold, the sale is absolutely void. (Hardenburgh v. Keod, 10 Cal. 402; Muskegon Lumber Co. v. Brown, 66 Ark. 539, 51 S.W. 1056; Bucknall v. Story, 36 Cal. 67; Mecham v. Town of New Port, 70 Vt. 264, 40 A. 729; City of New Whatcom v. Bellingham Bay Imp. Co., 9 Wash. 639, 38 P. 163; Gage v. Pumpelly, 115 U.S. 454, 6 S.Ct. 136, 29 L.Ed. 449; Baker v. Kaiser, 126 F. 317, 61 C. C. A. 303; Harvey v. Douglas, 73 Ark. 221, 83 S.W. 946; Green v. McGrew, 35 Ind.App. 104, 111 Am. St. 149, 72 N.E. 1049, 73 N.E. 832; Landis v. Borough of Vineland (N. J.), 43 A. 569.)
The appellant commenced this action against the respondent to quiet title to the south half of the southwest quarter and the northeast quarter of the southwest quarter of section 13, township 1 south of range 6 east of Boise meridian. The defendant filed an answer denying the allegations of the complaint and alleged in a cross-complaint that the defendant was the owner of said described real property, and demanded that the title be quieted in the defendant. The cause was tried to the court, and findings of fact were made and conclusions of law, and a decree was entered in favor of respondent. The appeal is from the judgment.
The facts as found by the trial court are as follows: That the land described in the complaint, to wit, south half of the southwest quarter and the northeast quarter of the southwest quarter of section 13, township 1 south of range 6 east of Boise meridian, together with the following described lands not included in the complaint, to wit, the northwest quarter of the northwest quarter of section 24, township 1 south of range 6 east of Boise meridian, all in Elmore county, during the year 1897, were owned in fee by the defendant, Fred E Whitney, and were duly assessed for county taxes, and that in such assessment, by a mistake, the lands described in the complaint were misdescribed in this, that in said assessment such lands were described as the "E. 2 S.W. 4, NE. 4 of SW. 4, section 23" of said township and range, but that the northwest quarter of the northwest quarter of section 24 was properly described in said assessment; that said taxes for the year 1897 were not paid, and the entire 160 acres were sold to Elmore county, July 14, 1897, for the delinquent taxes for the year 1897, and that on August 8, 1898, a deed was issued upon the tax sale to Elmore county...
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