Roy E. Hays Co. v. Allen

• Decision Date: 19 November 1930
• Docket Number: 1639
• Citation: 293 P. 370,42 Wyo. 265
• Parties: ROY E. HAYS CO. v. ALLEN
• Court: Wyoming Supreme Court

293 P. 370

42 Wyo. 265

ROY E. HAYS CO. v. ALLEN

No. 1639

Supreme Court of Wyoming

November 19, 1930

ERROR to the District Court, Fremont County; CYRUS O. BROWN, Judge.

Action by A. C. Allen against Roy E. Hays Company and another to quiet title to real estate. There was a judgment for plaintiff and Roy E. Hays Co. brings error.

Affirmed.

For the plaintiff in error there was a brief by G. H. Paul, of Riverton, Wyoming.

Real estate bid in by a county at tax sale, may be redeemed within two years. 2897 C. S. Questions of construction should be resolved in favor of the taxpayer. 33 Okl. 145. The deed as made by the treasurer was void, as only the county commissioners could execute a deed for the county. Inv Co. v. Mallin, et al., 25 Wyo. 392. It was void for improper acknowledgment. Matthews v. Blake, 16 Wyo 116. An attempt to pay taxes is equivalent to payment. Gleason v. Owens, 53 Wash. 483, 17 Am. and Eng. Ann Cas. 819; Bray v. Newman, 92 Wis. 100. Tax proceedings must contain accurate description of lands. 111 Am. St. Rep. 149. The rule of caveat emptor, applies to purchasers. 3 Devlin on Deeds 1349. Statutory requirements must be complied with. 16 Wyo. 116. Where redemption is permitted by officer, a tax deed is void. 20 L. R. A. 489; Corning Town v. Davis, 44 Iowa 622. Land sold for more taxes than were due, invalidates the deed. 11 A. S. R. 149. Personal property tax, was improperly charged against the land. Mortgagee had a right to redeem. The judgment should be reversed.

For the defendant in error there was a brief by A. C. Allen, of Riverton, Wyoming, pro se.

The form of the deed is not subject to attack by plaintiff in error. McCague Inv. Co. v. Mallin, (Wyo.) 170 P. 770. Plaintiff in error had no legal right to redeem from the tax sale. State v. Terry, (Wash.) 133 P. 386. Substantial compliance in making assessments, is all that is necessary. Union Trust Co. v. Weber, 96 Ill. 346; Bunten v. Assn., (Wyo.) 215 P. 244. Acts or omissions may constitute a waiver of rights. Bacon v. Rice, (Ida.) 93 P. 511; Co-op. Savings & Loan Assn. v. Green, (Ida.) 51 P. 770; Cooley on Taxation, Vol. 2, p. 1136. Illegality in the assessment proceedings, are not available as a defense. 2790 C. S.; Ricketts v. Crewsdon, (Wyo.) 79 P. 1042. Personal property tax is a lien on real estate of owner. 2858 C. S. Plaintiff in error was under no legal obligation to pay the taxes on property involved. Price v. Salisbury, 138 P. 1024; Remer v. Newell, 49 N.W. 865. A tax title will extinguish prior titles. Lucas v. Purdy, 24 L. R. A. (N. S.) 1297. Assessment of poll tax against the real estate did not render the sale void. Wakeman v. Board, (Wyo.) 274 P. 12. After county has purchased property at tax sale, it may sell to any person willing to pay the tax demanded. Meyer v. Wright, (Colo.) 131 P. 787, 17 S.Ct. 142; Ins. Co. v. Bulte, (Mich.) 7 N.W. 707. The case of Nowells v. Jones, 263 P. 698 is on all fours and in point. The principles enunciated in Bunten v. Grazing Assn. supra, should be applied to the collection of taxes in all cases.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

The proceedings in error undertaken in this case were instituted by the plaintiff in error, the Roy E. Hays Company, a copartnership, to review a judgment rendered by the District Court of Fremont County in favor of A. C. Allen, the defendant in error. The suit below was brought by the party last mentioned against the partnership aforesaid and also against the Riverton State Bank, as defendants, its purpose being to quiet the title to certain real property, which title Allen asserted under a tax sale and deed to him by the county treasurer and county commissioners of Fremont County, Wyoming. It was alleged in his petition that the defendants claimed some interest in this property. That interest the defendant, Roy E. Hays Company, averred in its answer to be an undivided one-half interest in and to the property in controversy, the same having been obtained under a sheriff's deed issued subsequently to the delivery of said tax deed. The bank, before trial, disclaimed any interest in the subject of the action and the cause was heard by the court without a jury, with the partnership as the only contesting defendant. The decree signed quieted the title to the property in Allen, as against the claims of each of said defendants.

The petition in error filed here assigns the action of the trial court, in overruling the motion for a new trial filed by the defendant, the Roy E. Hays Company, as the only error upon which a reversal of the judgment is asked.

Section 5872, W. C. S. 1920, requires the motion for a new trial in a civil action to be made at the term the verdict, report or decision is rendered, and, apart from an exception not material here, "shall be made within ten days after the verdict or decision is rendered." This provision of our statutes, by a long line of decisions of this court, has been held to be mandatory. Blonde v. Merriam, 21 Wyo. 513, 133 P. 1076, and cases cited.

Plaintiff in error's brief states that: "This cause was tried in the District Court of Fremont County, Wyoming, and a judgment rendered therein in favor of the plaintiff on the 3rd day of September, 1929," and record reference is made to support that statement. We have examined the record and, so far as can be told from it, what has been quoted above correctly declares that the judgment in this case was rendered on the 3rd day of September, 1929. A further examination of the record also discloses, that the defendant's motion for a new trial was not filed until September 14, 1929, and beyond the time allowed by law for doing so. Under these circumstances it was not error on the part of the trial court to overrule the motion. Boswell, Admr. v. Bliler, 9 Wyo. 277, 62 P. 350; Stanton v. C. B. & Q. R. R. Co., 25 Wyo. 138, 165 P. 993; Casteel v. State, 9 Wyo. 267, 62 P. 348.

Aside from the cause being in the situation just discussed, there is yet another matter which cannot be overlooked. The motion for a new trial mentioned above was presented to the court, and, by an order dated November 5, 1929, it was overruled. Concerning the preparation of bills of exceptions in proceedings in error, Wyoming Compiled Statutes 1920, Sec. 5864, provides:

"The party objecting to the decision must except at the time the decision is made, and shall have sixty days from and after the date of the judgment, decree, or final order in the case within which to reduce the exception to writing and present the same to the court or judge for allowance. If within said sixty days the party excepting shall make it satisfactorily to appear to the court or judge authorized to allow the bill of exceptions that the party will be unavoidably prevented from presenting the bill within said time, the court or judge by written order may extend said time, but not to exceed sixty additional days."

Regarding a motion for a new trial, in its relation to our rule 13 for the disposition of cases here, this court in Fried v. Guiberson, 30 Wyo. 150, 164, 217 P. 1087, 1091, said:

"The date of the overruling of such a motion, as to matters necessary to be presented thereby under said rule, is taken and accepted by this court as the date of the 'judgment, decree or final order' from which the period prescribed by statute will run, for reducing exceptions to writing and presenting the same for allowance. See Gilpatrick v. Perry, 26 Wyo. 538, 188 P. 442; Harvester Co. v. Jackson L. Co., 25 Wyo. 367, 170 P. 6; Chatterton v. Bonelli, 27 Wyo. 301, 196 P. 316. The said motion for a new trial having been necessary for a consideration here of the grounds asserted in this court for a reversal of the judgment, the period limited by law for presenting the bill for allowance is to be computed from October 21, 1920, the date on which the motion was overruled."

It is apparent then, that the sixty days allowed by law for the reduction to writing of the exceptions taken by the defendant on the trial of the cause, for presentation to the court or judge for allowance, would expire on January 4, 1930. In order to obtain an additional time to do this, it was necessary to apply to the court or judge for a written order extending the period allowed by the law as of course.

On December 17, 1929, the defendant made a written application to the trial judge entitled "Application for Extension of Time to File the Petition in Error, and Transcript of Evidence and Bill of Exceptions in the Supreme Court." Its purpose was therein stated to be "for an order extending the time in which to file the petition in error, transcript of evidence and bill of exceptions in the Supreme Court." The same day and upon this application, the judge made an order which, omitting caption, date and signature, reads:

"The application of the Defendant Roy E. Hays Co., having heretofore been filed in this court, asking for an order, extending the time, in which to file his petition in error, record, transcript of the evidence and bill of exceptions, in the Supreme Court, and the court being fully advised in the premises, and for good cause shown.

"It is therefore ordered, that the time for the filing of the petition in error, record on appeal, transcript of evidence and bill of exceptions in the Supreme Court, is herein extended for the period of 60 days from the 6th day of January, 1930."

Whatever the purpose sought to be accomplished by this order, it will be observed that no extension of time within which to reduce the exceptions taken at the trial by the defendant "to writing and present the same to the court or judge for allowance" was either asked for by the application described above or granted by the order just quoted in...