Sidlo, Simons, Day & Co. v. Phillips

• Decision Date: 01 October 1935
• Docket Number: 1861
• Parties: SIDLO, SIMONS, DAY & CO. v. PHILLIPS
• Court: Wyoming Supreme Court

49 P.2d 243

48 Wyo. 390

SIDLO, SIMONS, DAY & CO. v. PHILLIPS

No. 1861

Supreme Court of Wyoming

October 1, 1935

ERROR to the District Court of Natrona County; C. D. MURANE, Judge.

Suit by Luella Phillips against Walter L. French and others. To review a judgment in favor of the plaintiff, the defendant Sidlo, Simons, Day & Co., brings error.

Reversed.

For the plaintiff in error there was a brief by Pershing, Nye Bosworth & Dick, of Denver, Colorado, and William B. Cobb, of Casper, Wyoming, and oral argument by C. C. Dawson, of Denver, Colorado.

Plaintiff's evidence was insufficient to sustain a decree quieting her title to the property. Barrett v. Barrett, (Wyo.) 23 P. 857; Davis, et al. v. Minnesota Baptist Convention, 45 Wyoming 148. The procedure required for the levy and collection of taxes was not followed in acquiring a tax title to the property. The assessor's oath required by Section 30-303, R. S., was not attached to the assessment roll of 1926 or 1929. This is a mandatory requirement. Brewer v. Kulien, 42 Wyo. 314. No delinquent tax list was prepared and certified as required by Section 115-2304, R. S. The county received no deed as required by Section 115-2342, R. S. The statute was amended since the decision in the Barrett case. The tax sale upon which plaintiff's title is based did not extinguish the lien for special assessments. Section 22-1521, R. S. There were outstanding bonds of paving district number 17, within which this property is situated. The local improvement statute for cities and towns, Chapter 120, Laws 1915, was manifestly derived from the Washington statute passed in 1911, and a comparison of the two statutes fully justifies this assumption. The Washington court has held that the tax purchaser takes the property subject to assessment liens. Seattle v. Everett, (Wash.) 215 P. 237; Seattle v. Bond Company, (Wash.) 217 P. 721; Investment Company v. Tacoma, (Wash.) 233 P. 287; Tacoma Realty Company, (Wash.) 272 P. 43; Wilbur v. Van Vechten (Wash.) 8 P.2d 426. The adoption of the statute evidenced an intention to have special improvement liens continue as against purchasers from the county. Shelton v. County, (Wash.) 277 P. 839. The trial court was without jurisdiction to extinguish the special assessment liens, and the holders of paving bonds were indispensable parties. Sioux Company v. Trust Company, 82 F. 124; Denver Land Company v. Tunnel District, 284 P. 339; Grater v. High School, 173 P. 714; New Orleans Company v. New Orleans, 164 U.S. 471; Minnesota v Northern Securities Company, 184 U.S. 199; St. Louis Railway Company v. Blake, 36 F.2d 652. Failure to join indispensable parties was inexcusable. Franz v. Buder, 11 F.2d 854; State v. Gormley, 40 Wash. 601; 20 R. C. L. 704; Section 89-521; R. S.; Field v. Leiter, 16 Wyo. 1. There is a complete break in plaintiff's chain of title, sufficient to prevent a decree quieting title, there being no deed from the treasurer of Natrona County. The holders of bonds of paving district No. 17 are indispensable parties. The decree should be reversed.

For the defendant in error, there was a brief and an oral argument by Edward E. Murane, of Casper.

A special assessment lien is inferior to that of general taxes. Iowa Security Company v. Barrett, 230 N.W. 528. The Iowa statute is identical in terms with Section 22-1521, R. S. A tax deed based on sale for general taxes excludes a special assessment lien. Harrington v. Bank, 93 N.W. 347; Willcuts v. Rawlins, 52 N.W. 199; Hefner v. Insurance Company, 123 U.S. 747; White v. Thomas, 98 N.W. 101; 61 C. J. 932; State v. Board, (Mont.) 296 P. 1; Tacoma v. Company, 264 P. 997; Missouri Company v. Burri, 216 S.W. 570; State v. Kilburn, 69 A. 1028. Title was given to the county at the tax sale, and then sold as county property. The purchaser from the county took an absolute title freed from all liens. Section 22-1540, R. S.; Chapter 68, Laws 1929. The evidence established that the oath of the assessor was attached to the 1929 tax roll. When not shown to the contrary, it is presumed that the officer performed his duty. Nowells v. Jones, 37 Wyo. 405. The case of Brewer v. Kulien, 42 Wyo. 314, cited by counsel, was one where no oath was attached to the assessment roll. Counsel for plaintiff in error called for the treasurer's records, and they were furnished, but he did not offer evidence with respect to assessor's certificate, in which case the presumption is that the evidence was against his contention. Studebaker v. Hanson, 24 Wyo. 222. Where there is evidence to sustain the judgment, it will not be disturbed on appeal. Bishop v. Hawley, 33 Wyo. 271; Hinton v. Saul, 37 Wyo. 78. The point is covered by Nowells v. Jones, 37 Wyo. 405.

Pershing, Nye, Bosworth & Dick, C. C. Dawson, Jr., of Denver, Colorado, and Wm. B. Cobb, of Casper, Wyoming, in reply.

Chapter 68, Laws 1929 is not applicable to the 1927 tax sale here involved. Barrett v. Barrett, (Wyo.) 23 P.2d 857. Under the law enforced prior to 1929, the period of redemption could not expire until two years from the date of Commissioner's Deed to plaintiff on July 6, 1935. This suit was commenced on July 8, 1932. Plaintiff was not the owner in fee, but had only an inchoate right on the commencement of her suit. It would be necessary for her to either pay the special assessment liens, or take the title subject thereto.

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

OPINION

RINER, Justice.

The defendant in error, Luella Phillips, as plaintiff in the district court of Natrona County, on July 8, 1932, brought suit to quiet her title to Lot 1 in Block 152 in the City of Casper, Wyoming. Walter L. French and any and all heirs at law of Grace W. French and any unknown heirs, assignees or grantees of Grace W. French not of record, W. F. Henning, Lumbermans Securities Corporation, an Oregon corporation, and Sidlo, Simons, Day & Company, a Colorado corporation, were made defendants. From a judgment in her favor against all the defendants, the corporation last mentioned alone instituted these proceedings in error. Briefly the facts presented by the record for our consideration appear to be these:

The premises in question were in the year 1926 owned by Grace W. French, mentioned above, who failed to pay the general taxes assessed against them for that year, and in consequence the property was on July 6, 1927, subject to tax sale and bid in by Natrona County. The certificate of purchase issued by the County Treasurer, relative to the matter, recited that the sale of said lot was had in the manner provided by statute for the delinquent taxes due thereon, in the amount of $ 108.80, including interest, penalty and the costs allowed by law. The certificate also stated that unless the real estate was legally redeemed the purchaser would be entitled to a deed on and after July 6, 1929. No redemption seems to have been had and no deed was ever issued pursuant to said certificate.

Subsequently and on July 8, 1930, the property was again sold for failure to pay the general taxes for the year 1929, and again bid in by Natrona County. The certificate of purchase issued by the County Treasurer on account of this sale indicated the delinquent taxes, interest, penalty and costs as the sum of $ 102.74 and the redemption date as July 8, 1933. Again the property remained unredeemed and no deed was delivered to the county in consequence of that fact.

July 6, 1932, for a stated consideration of $ 810.44, this being the sum total due on said property as general taxes, plus interest, penalties and costs for the years 1926 to 1931, inclusive, the Board of County Commissioners of Natrona County executed and delivered to Luella Phillips, aforesaid, a "County Commissioner's Deed" to the property, and two days later the suit above mentioned was commenced.

The plaintiff's petition was in the usual form of a suit to quiet title and described to some extent the adverse claims to the property involved, asserted by the defendants, and prayed that their claims be declared "null and void and of no force or effect." In its answer, supplementing denials of certain averments in plaintiff's petition relative to the latter's asserted right to the lot aforesaid, Sidlo, Simons, Day & Company pleaded that it was the owner of bonds issued on behalf of Paving District No. 17 in the City of Casper, Wyoming, and by virtue thereof and certain alleged proceedings taken for their foreclosure, was the owner of a lien, valid and enforceable against the property in question. The answer, praying that plaintiff's petition be dismissed, also averred that bondholders of said Paving District were necessary parties to the litigation and that a determination of the issues therein could not be made without their presence before the court. The defendant W. F. Henning filed an answer wherein he denied plaintiff's alleged rights in the real estate aforesaid and set up in detail his adverse claim as a holder of certain bonds of Sanitary Sewer District No. 2-B of said City of Casper embracing said property, and asked that the lien thereof be adjudged as prior to any claim on the part of the plaintiff thereto. Plaintiff filed replies to these answers, denying each and every allegation contained in that of Sidlo, Simons, Day & Company, and aside from admitting the defendant Henning's ownership of the bonds and that Casper is a city of the first class in Wyoming, denying also each and all the allegations of his answer.

The case was tried to the court without a jury, with the result hereinabove stated. Other facts will be mentioned as may be necessary in connection with the points required to be decided.

Plaintiff in error argues that its answer asserted a defect of parties defendant in that other holders of bonds of...