Parsons v. Wrble

• Decision Date: 24 April 1912
• Parties: L. F. PARSONS, Appellant, v. JOE WRBLE, Respondent
• Court: Idaho Supreme Court

123 P. 638

21 Idaho 695

L. F. PARSONS, Appellant, v. JOE WRBLE, Respondent

Supreme Court of Idaho

April 24, 1912

TAX SALE CERTIFICATE-SALE TO COUNTY-ENTRY OF SUBSEQUENT ASSESSMENTS.

(Syllabus by the court.)

1. Where a tract of land was sold in the year 1905 for the taxes of 1904, and the property was struck off to the county, and was thereafter assessed each year during the period of redemption against the land owner, and the assessor failed and neglected to make the entry of the subsequent assessments in red ink as provided by sec. 1755, Rev. Codes, and the attention of the tax collector was accordingly not called to the fact that the land had been previously sold to the county for delinquent taxes, and there was nothing to notify either the taxpayer or the tax collector at the time of the payment of the taxes under subsequent assessments that the land had been previously sold to the county for delinquent taxes, and where the property owner had remained in possession of the land continuously until the commencement of an action to quiet title: held, that the failure on the part of the taxing officer to make the entry as provided by sec. 1755 was an error which prejudiced a substantial right of the land owner and is sufficient to defeat the tax deed where the land owner tenders and offers to pay the taxes, penalty, interest and costs incurred.

2. It is the rule of law in this state that all statutes must be liberally construed with a view to accomplishing their aims and purposes and attaining substantial justice.

3. An error or omission in the performance of a duty imposed by law on a taxing officer which results to the prejudice of a taxpayer, or which would raise the presumption that he was prejudiced when viewed in the light of his conduct and the surrounding facts and circumstances under which he acted should be resolved and construed in favor of the taxpayer and on the side of equity.

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action to quiet title. Judgment for defendant. Plaintiff appeals. Affirmed.

Judgment affirmed. Costs awarded in favor of the respondent.

Dwight E. Hodge, for Appellant.

The decree of the lower court is erroneous in so far as it is based on the failure of the assessor to prepare and file in his own and the treasurer's office the records of tax sale certificates provided by secs. 1760 and 1761, Rev Codes. (Stewart v. White, 19 Idaho 60, 112 P. 677.)

The entry of assessment in red ink cannot be required for the purpose of giving notice to the owner of the prior sale, because it is required only while title to the outstanding certificate is in the county; if such title be in anyone else, the red ink entry is not required. (See sec. 1755, Rev. Codes.) Hence, the error of the assessor in this regard is not of any consequence.

"Substantial compliance with the requirements of the law in making assessment is all that is necessary. If property is a subject of taxation, it cannot escape through technical failure of the officer to perform his duty unless it has actually misled the party to his injury." (Co-op. etc. Assn. v. Green, 5 Idaho 660, 51 P. 770; Oregon etc. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 P. 904.)

This rule has been extended to include not merely acts relating to assessment, but all acts connected with the whole proceeding from the levy to the issue and form of the tax deed. (Bacon v. Rice, 14 Idaho 107, 93 P. 511; White Pine Mfg. Co. v. Morey, 19 Idaho 49, 112 P. 674; McGowan v. Elder, 19 Idaho 153, 113 P. 102; Turner v. Hutchinson, 113 Mich. 245, 71 N.W. 514.)

Clay McNamee, and James L. Harn, for Respondent.

The failure of the county auditor to attach his affidavit to the corrected assessment-book before delivering the same to the tax collector as prescribed and required in sec. 1724, Rev. Codes, and the failure of the assessor to enter in red ink on the assessment-rolls all taxes and penalties accruing against the property after sale to the county for delinquent taxes, and during the period of time in which the county held the tax certificates, as provided by sec. 1755, is decisive of this case. (Miller v. Kern County, 137 Cal. 516, 70 P. 549; Steele v. San Luis Obispo County, 152 Cal. 785, 93 P. 1020; People ex rel. Gillies v. Suffern, 68 N.Y. 321; Brevoort v. City of Brooklyn, 89 N.Y. 128; Bradley v. Ward, 58 N.Y. 401; Maxwell v. Paine, 53 Mich. 30, 18 N.W. 546; Cooley on Taxation, 2d ed., 412.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This action was instituted for the purpose of obtaining a decree quieting plaintiff's title to a tract of land. A judgment by default was entered and the default was subsequently set aside and the defendant permitted to answer. (Parsons v. Wrble, 19 Idaho 619, 115 P. 8.) The case was tried and judgment and decree were entered in favor of the defendant and the plaintiff has appealed.

The appellant relies for recovery on a tax deed issued July 17, 1908, based on a tax sale certificate issued July 11, 1905, for the taxes assessed against the tract of land for the year 1904. It appears that the respondent Wrble made his final proof on this land May 4, 1903, and that patent was issued therefor on August 1, 1904. The land was assessed for the first time in the year 1904, and the respondent failed and neglected to pay his taxes and allowed them to go delinquent, and the property was accordingly sold in July the following year, and there being no bidder, the land was struck off to the county. The county subsequently sold the certificate to appellant.

It appears from the findings of the trial court that there were a great number of irregularities in the assessment of this property. The court finds, first, that the county auditor neglected and failed to attach to the assessment-book the affidavit required by sec. 1724 of the Rev. Codes before delivering the same to the tax collector; second, that after the purported tax sale, July 11, 1905, the tax collector neglected and failed to deliver to the county treasurer a duplicate of the certificate of tax sale, and that no duplicate was ever filed in the office of the treasurer, as required by sec. 1760 of the Rev. Codes; third, that the tax collector failed and neglected to make entry in a book kept for that purpose, or in any book, of the name of the party assessed, together with a description of the land corresponding to that in the certificate, and the date of sale, purchaser's name and amount of taxes and penalties, as required by sec. 1761 of the Rev. Codes; fourth, that after the execution and delivery of the tax sale certificate, and while the county was still the owner and holder thereof, and prior to the time when the county became entitled to a tax deed, the assessor failed and neglected to enter on the assessment-roll in red ink the subsequent assessments, as required by sec. 1755 of the Rev. Codes; fifth, that the county auditor failed and neglected to affix his seal of office to the assignment of the tax sale certificate to this appellant, as required by sec. 1774 of the Rev. Codes.

The court thereupon concluded that the sale was void and that the plaintiff, who is appellant herein, was not entitled to a decree quieting his title to the property, and entered a decree quieting the title in the defendant, upon delivery of the principal and interest and penalties to the plaintiff by the clerk, in whose hands the same had been deposited upon the filing of the answer herein.

Counsel for appellant argues all of these questions and presents a very clear and concise statement of his position on the law governing the same. This court has heretofore considered and passed upon questions very similar to most of those raised in this case, and on most of them its conclusion has been adverse to the position taken by respondent. (Bacon v. Rice, 14 Idaho 107, 93 P. 511; White Pine Mfg. Co. v. Morey, 19 Idaho 49, 112 P. 674; Stewart v. White, 19 Idaho 60, 112 P. 677; McGowan v. Elder, 19 Idaho 153, 113 P. 102.)

Since the court held in this case against the validity of the tax deed, if we find any one of the grounds stated against its validity sufficient to support the judgment, it will be unnecessary for us to consider any further defects or objections to the validity of the deed. As we view the facts of this case, and the law applicable thereto, the failure of the assessor to enter subsequent assessments in red ink, as required by sec. 1755 of the...