Rice v. Rock
| Decision Date | 02 December 1914 |
| Citation | 26 Idaho 552,144 P. 786 |
| Parties | F. NETTIE RICE, as Treasurer and Ex-Officio Tax Collector of POWER COUNTY, Appellant, v. HENRY ROCK, Respondent |
| Court | Idaho Supreme Court |
TAX CERTIFICATE-TAX DEED-STATUTORY CONSTRUCTION-NOTICE-WHEN GIVEN.
1. Under the provisions of sec. 1763, Rev. Codes, as amended at the special session of the legislature (Laws 1912, p. 43), no purchaser or assignee of such purchaser of any land at a tax sale shall be entitled to demand a tax deed therefor until the notice therein required shall be given.
2. Under the provisions of sec. 1649, Rev. Codes, the levy of a tax has the same effect as a judgment and becomes a lien upon the property, which lien can only be divested by the payment of the tax or the sale of the property.
3. Under the provisions of sec. 1762, Rev. Codes, on filing the certificate of tax sale with the ex-officio auditor and recorder, the lien vests in the purchaser and is only divested by the payment to the county treasurer, on certificate of the auditor, for the use of the purchaser, of the whole amount of money paid for such certificate, together with interest thereon.
4. At the time said certificates were issued, the law did not require the giving of any notice to the owner of the property, but the legislature has authority to change the remedy provided for the enforcement of certificate contracts provided they do not impair the obligation of the contract so long as the obligation of performance remains in full force.
5. Provision of said sec. 1763 which requires said notice to be given at least three months and not more than five months before the expiration of the term of redemption is directory.
6. A period of time in which said notice is required to be given was made for the purpose of ending the period in which redemption could be made and not for the purpose of divesting the holder of his lien on the property described in his tax sale certificate.
7. Held, that after the expiration of the three-year period and up to the time the notice is given, the owner may redeem the property from tax sale.
APPEAL from the District Court of the Fifth Judicial District for Power County. Hon. Alfred Budge, Judge.
Action to determine the right of a tax certificate holder to the deed without giving the notice required by sec. 1763, Rev Codes, as amended. Judgment for plaintiff. Reversed.
Reversed and remanded. Costs awarded to the appellant.
J. H Peterson, Atty. Gen., J. J. Guheen, T. C. Coffin, and E. G. Davis, Assts., and O. R. Baum, for Appellant.
Cases precisely similar to the case at bar have arisen in many jurisdictions in this country and without exception those jurisdictions now hold that it is incumbent upon the holder of a tax sale certificate, under such circumstances, to publish the notice required by the statute. (Curtis v. Whitney, 80 U.S. (13 Wall.) 68, 20 L.Ed. 513; Oullahan v. Sweeney, 79 Cal. 537, 12 Am. St. 172, 21 P. 960; Gage v. Stewart, 127 Ill. 207, 11 Am. St. 116, 19 N.E. 702; Herrick v. Niesz, 16 Wash. 74, 47 P. 414; State v. Krahmer, 105 Minn. 422, 117 N.W. 780, 21 L. R. A., N. S., 157; Coulter v. Stafford, 56 F. 564, 6 C. C. A. 18.)
T. S. Becker and McDougall & Jones, for Respondent.
The plaintiff in this case, by virtue of the tax certificate, obtained a vested right in the property which could only be divested by the redemption from said sale by the owner of the lots within three years. (Lawrence v. Defenbach, 23 Idaho 78, 128 P. 81.)
The right of the owner and purchaser at a tax sale must both be governed by the law as it existed at the time of the sale. (Black on Tax Title, sec. 175; Merrill v. Dearing, 32 Minn. 479, 21 N.W. 721; Johnson v. Taylor, 150 Cal. 201, 119 Am. St. 181, 88 P. 903, 10 L. R. A., N. S., 818; Teralta Land etc. Co. v. Shaffer, 116 Cal. 518, 58 Am. St. 194, 48 P. 613; Allen v. Allen, 95 Cal. 184, 30 P. 213, 16 L. R. A. 646.)
The enforced sale of property on execution or for the non-payment of taxes, constitutes a contract with the purchaser which cannot be materially altered, without his consent. (Lawrence v. Defenbach, supra; Welsh v. Cross, 146 Cal. 621, 106 Am. St. 63, 81 P. 229, 2 Ann. Cas. 796.)
If the remedy afforded be qualified and restrained by conditions of any kind the right of the owner may indeed subsist and be acknowledged, but it is impaired and rendered unsecure according to the method and extent of such restrictions.
It is settled that all the laws of a state existing at the time a contract is made which affect the rights of the parties to the contract enter into and become a part of it, and are as obligatory upon all courts which assume to give a remedy on such contracts as if they were referred to or incorporated in the terms of the contract. (Ford v. Durie, 8 Wash. 87, 35 P. 595, 1082; Stein v. Hanson, 99 Minn. 387, 109 N.W. 821; 37 Cyc. 1452, and cases cited.)
Kansas has repeatedly held that the amendment of a statute of tax sale certificates cannot affect certificates previously issued. (Richards v. Board of Commrs., 28 Kan. 326; Coonradt v. Myers, 31 Kan. 30, 2 P. 858; Pounds v. Rodgers, 52 Kan. 558, 39 Am. St. 360, 35 P. 223; Morgan v. Board of Commrs., 27 Kan. 89.)
This is an appeal from the judgment of the district court of Power county whereby the treasurer and ex-officio tax collector was directed to issue a treasurer's tax deed to the respondent Rock conveying to him certain town lots situated in the village of American Falls on tax sale certificates procured by said Rock at a tax sale duly held in said county on July 8, 1910, for taxes assessed against such lots for the year 1909.
It appears from the record that the respondent in the month of August, 1913, applied to the defendant as treasurer and ex-officio tax collector of said county for tax deeds to the several lots that he had purchased at said tax sale, and she refused to execute such deeds. Thereupon the respondent made application to the district court of the fifth judicial district for a writ of mandate to compel the appellant to execute such deeds. To said petition or complaint a demurrer was interposed and overruled by the court, and the defendant thereafter stood on her demurrer and refused to answer and the court thereafter heard certain proofs and made findings of fact and conclusions of law and entered judgment in favor of the respondent.
It appears from the record that the respondent had not complied with the requirements of sec. 1763 as amended at the special 1912 session of the legislature (Sess. Laws 1912, p. 43). That section provides, among other things, that thereafter no purchaser or assignee of such purchaser of any land at tax sale shall be entitled to a tax deed therefor until the notice therein required shall have been given as provided by said section, which notice, it is conceded, was not given in this case.
Counsel for appellant contends that said law as amended is applicable to the facts of this case even though the said land was sold for taxes long prior to the time that the act of 1912 went into effect; that it is necessary for the respondent to comply with the terms of said law in giving notice before she would be justified or authorized to execute the deeds demanded.
The question then directly presented to the court is whether under the law the respondent is required to give such notice as that statute requires before he is entitled to tax deeds. The law in force at the time said tax sale was made did not require any notice to be given of the application for a deed. Under the provisions of sec. 1649, Rev. Codes, the levy of a tax in this state has the same effect as a judgment and becomes a lien upon the property, which lien can only be divested by the payment of the tax or the sale of the property. Sec. 1762, Rev. Codes, transfers that right to the purchaser at the tax sale and creates a vested right and provides the method and manner by which such right may be divested. Sec. 1763 provides that a tax deed may issue at the ...
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Brinton v. Johnson
...personal obligation of appellant, as it was a lien not only upon this particular property, but on all his other property. (Rice v. Rock, 26 Idaho 552, 144 P. 786.) appellant having by his deed covenanted to pay the 1919 taxes, oral testimony seeking to vary or contradict this covenant is no......
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Lawrence v. Corbeille
...expired and the purchaser was entitled to a deed under the statute before such amendment became a law, affirmed, and Rice v. Rock, 26 Idaho 558, 144 P. 786, 2. A judgment entered in an original proceeding in the supreme court, directing that a peremptory writ of mandate issue to compel the ......
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Brinton v. Johnson
... ... owner, Brinton, and was a lien, not only on the property ... conveyed, but on all his other property. (Rice v ... Rock, 26 Idaho 552, 144 P. 786.) ... Our ... statute provides plainly and concisely that the implied ... covenant against ... ...
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Smith v. City of Nampa, 409
...before the property is finally sold by the county. (Sec. 61-1023, I. C. A.; Johnson v. Sowden, 25 Idaho 227, 136 P. 1136; Rice v. Rock, 26 Idaho 552, 144 P. 786.) That is reason for service of the notices required by sec. 61-1027, I. C. A., before issuance of tax deed and is further manifes......