Quivey v. Lawrence

• Decision Date: 01 January 1870
• Citation: 1 Idaho 313
• Parties: G. W. Quivey, Appellant, v. J. N. Lawrence, Respondent.
• Court: Idaho Supreme Court

1 Idaho 313

G. W. Quivey, Appellant, v. J. N. Lawrence, Respondent.

Supreme Court of Idaho

January 1, 1870

IMPROVEMENTS - PUBLIC LANDS - TAXATION. - Improvements upon public lands as also the possessory right thereto, are taxable.

ASSESSMENT-TAXATION-PUBLIC LANDS.-The assessment of land is a prerequisite which cannot be dispensed with. It is the basis upon which all subsequent proceedings rest. For the purpose of defeating a tax deed evidence may be given that the land was not assessed, or that it is public land.

TAX SALE.-If the improvements on land be assessed and taxed, a sale of the land for such tax is void.

APPEAL from the Second Judicial District, Ada County.

Miller & Brumback, for the Appellant. H. E. Prickett and E. J Curtis, for the Respondent.

Opinion by LEWIS, J.,

NOGGLE C. J., concurring.

This is an action brought by the plaintiff, who claims to be the owner in fee of certain real estate in Boise City, to re-

cover the same. The case was tried by the court below without the intervention of a jury, and judgment was rendered against the plaintiff for costs. Plaintiff appeals. On the trial the plaintiff offered in evidence a deed from the tax collector of Ada county, of date July 2, 1867, reciting, among others, the following facts: That the owners of the following described lots, piece and parcel of lots, failed and neglected to pay the taxes thereon for 1866; that notice was duly published that he would, on the 17th of December, 1866, at the courthouse door, in Boise City, sell said lands and real estate; that the sale was adjourned from day to day, and on the 29th of December, 1866, he did sell the following described piece or parcel of land to the plaintiff for the sum of eighteen dollars and five cents, to wit: Lots Nos. two (2) and three (3) in block thirty-three (33) in Boise City. That no redemption has been made.

The defendant sets up in his answer that one John McLellan is the owner as against all persons save the United States, and that defendant occupies premises as the lessee of McLellan. The defense offered in evidence, page 35 of the assessment-roll of Ada county for 1866, on which page, in the column and under the heading "Description of Real Property," is assessed: "One house and fence on lots numbers two (2) and and three (3), in block thirty-three (33), in Boise City," and in the following column under the heading "Cash Value," the figures "500." The defense also proved that the lots in controversy were on the lands of the United States.

The plaintiff assigns for errors of law, the admissions as testimony in the case, page 35 of the assessment-roll, and the conclusions of law derived by the court from the findings of facts.

The court found the following as the facts in the case:

1. That the plaintiff claims title and the right to the possession of the premises mentioned in the complaint by virtue of a tax deed from the tax collector of Ada county, of date July 2, 1867, which said deed purports to be based upon a sale of said premises and real estate for delinquent taxes alleged to have been assessed against the property for the year 1866.

2. That the property mentioned and described in said deed was not assessed in the year 1866, but that the assessment relied on to support the deed was made upon the house and fence upon said real estate, and not the real estate itself.

3. That such assessment does not place any value in dollars and cents, or otherwise, upon said property.

As conclusions of law the court finds: 1. That the assessment is void. 2. That the tax collector had no right to sell said property. 3. That plaintiff acquired no title or right of possession of the premises, and that he is not entitled to take anything by his suit, but that defendant is entitled to judgment for costs.

There is also an additional fact shown to the court on the trial, to wit: that the land mentioned in the tax deed is the property of the United States.

It is claimed by the plaintiff that the court erred in the admission of the assessment-roll of 1866 in evidence, for the reason that, under the provisions of the revenue law, second session, section 42, "any deed derived from a sale of real estate, under the provisions of this act, shall be conclusive...