Shea v. Owyhee County

• Decision Date: 22 February 1945
• Docket Number: 7192
• Citation: 156 P.2d 331,66 Idaho 159
• Parties: JOHN T. SHEA, Respondent, v. OWYHEE COUNTY, Appellant
• Court: Idaho Supreme Court

156 P.2d 331

66 Idaho 159

JOHN T. SHEA, Respondent, v. OWYHEE COUNTY, Appellant

No. 7192

Supreme Court of Idaho

February 22, 1945

1. Taxation

The statute providing that county commissioners "may" refund, to owner of any delinquency certificate which has been determined to be void for irregularity of taxing officers, amount paid on sale of certificates by county with interest, is mandatory and required purchaser of land sold for delinquent taxes under contract with county to be refunded of all payments made, with interest and taxes paid where tax deed was declared void. I.C.A., secs. 30-708, 61-1902.

2. Taxation

The right of purchaser at tax sale to refund of payments interest, and taxes because of invalidity of tax sale does not accrue until it has been definitely determined that delinquency certificate, contract of sale, or tax deed is void. I.C.A., secs. 30-708, 61-1902.

3. Taxation

The statutory law in force at time of determination of invalidity of tax delinquency certificate, contract of sale of tax delinquent lands, or tax deed, determines purchaser's right to refund of payments made. I.C.A., secs. 30-708, 61-1902.

4. Taxation

The rule of caveat emptor does not apply to purchaser at tax sale which is declared void if there is statutory provision for refund of payments made by such purchaser. I.C.A., secs 30-708, 61-1902.

5. Taxation

The payment by purchaser under contract of sale of lands for delinquent taxes and subsequent taxes on such lands are not "voluntary payments" so as to defeat recovery when application for refund is properly made after sale is declared void. I.C.A., secs. 30-708, 61-1902.

6. Limitation of actions

The statute of limitations does not begin to run against right of purchaser at invalid tax sale to recover payments made until after right of refund and recovery accrues. I.C.A., secs 30-708, 61-1902.

7. Taxation

The statute, as amended in 1933, providing that county commissioners may refund to purchaser of property erroneously sold for taxes when it has been determined by board of county commissioners that such sale is void on account of irregularity of taxing officers, or that sale of such property is invalid, amount paid therefor, with interest, applied to a case arising after its passage in which invalidity of tax title was judicially determined though tax sale was made before its passage. I.C.A., sec. 61-1902, as amended by Sess. Laws 1933, chap. 198.

8. Taxation

A forfeiture of payments by purchaser under a void tax sale cannot be declared until after determination that sale is void. I.C.A., secs. 30-708; 61-1902, as amended by Sess. Laws 1933, chap. 198.

Appeal from the District Court of the Third Judicial District of the State of Idaho, for Owyhee County. Hon. Charles E. Winstead, Judge.

Affirmed.

Milo Axelson for appellant.

Purchaser of defective title at tax sale, in absence of statutory authority, buys at his peril, can not recover money paid, and rule of "caveat emptor" applies. (Grimes v. Rainey, 104 Kan. 109, 178 P. 251; Loomis v. County of Los Angeles, 59 Cal. 456 (Cal. 1881); Lisso and Brother v. Police Jury of Parish of Natchitoches, 127 La. 283, 53 So. 566, 31 L.R.A. (N.S.) 1141 and cf. note thereunder; Larson v. Peppard, 38 Mont. 128, 99 P. 136, 129 Am. St. Rep. 630, 16 Ann. Cas. 800; Mitchell v. Minnequa Town Co., 41 Colo. 367, 92 P. 678.)

Taxes voluntarily paid can not be recovered. (Asp v. Canyon County, 43 Ida. 560, 256 P. 92; Howell v. Board of County Commissioners, 6 Ida. 154, 53 P. 542; 61 C.J. 985, Sec. 1263, par. 4, and Section 1264; 61 C.J. 948, Sec. 1226, par. 3, and Section 1227; Section 61-1913, I.C.A.; Section 61-1902, I.C.A.)

Idaho Statute enacted in 1933 providing for refunds on void or invalid taxes, not applicable because enacted after contract made and entered into, and language makes refund discretionary with Board of Commissioners. (Grimes v. Raney, 104 Kan. 109, 178 P. 251; Idaho Sess. Laws of 1933, chap. 198, p. 392, amending Sec. 61-1902, I.C.A.; Annotations under Kan. Gen. Statutes 1915, Sec. 11461.)

Anderson & Leguineche for respondent.

I.C.A. 61-1902 as amended by Chapter 198, 1933 Sess. Laws, page 392, is a remedial statute and applies to tax sales made by counties prior to the enactment of the statute. (Smith v. Golden State Syndicate (Cal.), 185 P. 208; Real v. Kern County (Cal.), 179 P. 726; City of Los Angeles v. Oliver (Cal.), 179 P. 727; Millikan v. City of LaFayette (Ind.), 118 Ind. 323, 20 N.E. 847; School District No. ve v. Allen County Commr's, 22 Kan. 568.)

Before respondent had any cause of action for a return of moneys paid by him there was required by law a determination of the invalidity of the tax deed and the contract of sale, and until respondent had a cause of action, the statute of limitations did not commence to run. (Wilson v. Twin Falls County, 47 Ida. 527, 277 P. 1114; Real v. Kern County (Cal.), 179 P. 726; Lawrence v. Doolan (Cal.), 68 Cal. 309, 9 P. 159; Merriam v. County of Otoe (Neb.), 15 Neb. 408, 19 N.W. 479.)

Miller, J. Ailshie, C.J., and Budge, Givens and Holden, JJ., concur.

OPINION

Miller, J.

This action was instituted February 4, 1942, to recover judgment against Owyhee County, defendant-appellant, on account of payments made by plaintiff-respondent of principal, interest and taxes paid on a contract of sale of real property, situate, lying and being in Owyhee County, Idaho. The facts leading up to and necessitating the institution of said action, briefly stated, are as follows: May 4, 1932, Owyhee County, by and through its proper officials, entered into a contract for the sale of certain real property to respondent, John T. Shea. The title to the real property had been acquired by said county through a tax deed for delinquent taxes. The contract of sale provided for an initial payment and annual installments with interest on the unpaid balances, together with the payment of all taxes and assessments after January 1, 1933. Respondent made certain payments on the principal, interest and taxes which were accepted by appellant in accordance with the contract. April 7, 1936, Kathleen W. Kivett, the owner of the real property at the date of the issuance of the tax deed to appellant, commenced an action in Owyhee County to have said tax deed adjudged void and said contract of sale to respondent declared invalid. In said action Owyhee County, John T. Shea and Myrtle H. Shea were made defendants. On the trial of said action the trial court, on October 2, 1936, entered its decree denying the relief prayed for by Kathleen W. Kivett, and adjudged that Owyhee County, John T. Shea and Myrtle H. Shea were entitled to the exclusive possession of said real property. Said case was appealed to this court, and on November 26, 1937, the action of the trial court was reversed (Kivett v. Owyhee County, et al, 58 Ida. 372) and remanded. June 10, 1941, the action was finally determined and the tax sale to the county and contract of sale to Shea were held to be void and Kathleen W. Kivett decreed to be the owner.

October 2, 1941, respondent filed with the board of county commissioners a claim for a refund and repayment of the amounts he had paid on the purchase price of the real property, with interest and tax payments. On October 4, 1941, the commissioners rejected said claim, thereby necessitating this action. February 26, 1942, appellant filed a special demurrer, which was overruled September 19, 1942. September 30, 1942, an answer was filed and on May 6, 1943, an amended answer was filed. May 7, 1943, an agreed statement of facts was signed by attorneys for respective parties to which was attached a copy of the contract of sale, marked Exhibit "A". The amounts paid on said contract, interest and taxes, correspond to the amounts set out in respondent's complaint. January 12, 1944, a stipulation, signed by respective counsel, was filed, and therein it is agreed that if any judgment is entered by the trial court it shall include not more than the amounts therein mentioned. The amounts mentioned in the stipulation agree with those designated in the complaint and agreed statement of facts, except as to the tax payments, which are $ 148.28 less. On January 12, 1944, the trial court entered its judgment, based upon the amounts agreed upon in the stipulation, in the sum of $ 1,678.23, with interest thereon at 6% per annum, and costs amounting to $ 11.40. March 18, 1944, notice of appeal from the judgment was filed.

The specifications of error assert (1) That the court erred in overruling the demurrer, (2) in entering judgment for the refund of payments made under the contract, (3) in entering judgment for the taxes paid by respondent, and (4) in entering judgment against appellant. The first point urged by appellant is as follows: "Questions concerning rights of a purchaser at a tax sale are to be determined by law in force at the time sale is made, which law enters into and becomes a part of the contract." The sale was made under the provisions of section 30-708, I.C.A., which authorizes a board of county commissioners, either for cash or upon such terms as the board may determine, not exceeding five years, to sell real or personal property belonging to the county, not necessary for its use, at public auction, at the courthouse door, after thirty days' previous notice given by publication.

At the time of executing the sales contract (May 4, 1932) section 61-1902, I.C.A., among other things, provided: "The board of county commissioners may, at any time when in session, cancel taxes which for any lawful reason should not be collected, and may refund to any taxpayer any money to which he may be entitled by reason of a double payment of taxes on any property for the same year, or the...