State v. Stevenson

• Decision Date: 30 December 1898
• Citation: State v. Stevenson, 6 Idaho 367, 55 P. 886 (Idaho 1898)
• Parties: STATE v. STEVENSON
• Court: Idaho Supreme Court

55 P. 886

6 Idaho 367

STATE v. STEVENSON

Supreme Court of Idaho

December 30, 1898

ESTATE OF DECEDENT-NONRESIDENT FOREIGNERS.-A nonresident foreigner cannot take real estate by succession under the provisions of section 5715 of the Revised Statutes, unless he appears and claims succession within five years after the death of decedent.

RIGHT OF SUCCESSION.-If succession is not claimed within said period of time, real estate owned by deceased escheats to the state to be disposed of as provided by section 5716 of the Revised Statutes.

ESCHEAT.-Title by escheat passes to the state by operation of law.

TAXES-STATE EXEMPT.-Lands belonging to the state are exempt from taxation, and no title can be acquired to the same by a tax deed.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Judgment affirmed. Costs of this appeal awarded to respondent.

Wyman &amp Wyman, for Appellants.

The claim of title of the state is based upon chapter 14, title 10, of the Revised Statutes of Idaho embracing sections 5700-5717, being the chapter entitled "Succession," which provides for the distribution of the property of persons dying intestate. That this estate was subject to the ordinary laws for the collection of taxes, and that no escheat could take place until five years after the reducing of the property to the possession of the state in pursuance to the order of the court, we think is fully sustained by the following case: People v. Roach, 76 Cal. 294, 18 P 407.

R. E McFarland, Attorney General, and Hawley & Puckett, for Respondent.

As between the state and a third party, its title to the premises in dispute is absolute, and cannot be questioned or put in issue in this case. Counsel, in support of their contention, cites but one case (People v. Roach, 76 Cal. 294, 18 P. 407), which we think confirms our contention herein. In that case the attorney general commenced proceedings before the expiration of five years, and the court held, and properly, too, that the action was premature. We contend that the court was justified in granting plaintiff's motion for judgment on the pleadings, for the reason that the record shows that if the state was not the owner of the property at the time of the assessment for taxes in 1893, and upon which appellant bases his title, the assessment is absolutely void for the reason that it was not assessed to the rightful owner, as required by statute. It is the duty of the assessor to assess the property to owner if he can ascertain owner; otherwise to assess it to unknown owners. (Weyse v. Crawford, 85 Cal. 196, 24 P. 735.) An assessment for taxes must be made against the owner when known. The individual, not the property, pays the tax. (Kelsey v. Abbott, 13 Cal. 609, and numerous cases therein cited.) A tax deed based upon an assessment of land not made to true owner, but to a person who had no title thereto, is void. (Klumpke v. Baker, 68 Cal. 559, 10 P. 197.) An assessment of lands owned by one "Costro" to "Castero" is invalid. (Emeric v. Alvarado, 90 Cal. 444, 27 P. 356.)

SULLIVAN, C. J. Huston and Quarles, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an action in ejectment, brought by the state, against David O. Stevenson, C. C. Stevenson, and Henry Haming, to recover the possession of lot 2 and southeast quarter of northwest quarter, section 7, township 4 north, range 1 east, Boise meridian. The defendants David O. Stevenson and Henry Haming filed disclaimers, and defendant C. C. Stevenson answered, claiming to be the owner of said premises; that he acquired title to said premises under and by virtue of a certain tax deed. The following facts appear from the record: That one Adolph Hempel died on or about the sixteenth day of April, 1887, seised in fee of said tract of land, leaving no known heir surviving him; that letters of administration were duly issued to the public administrator of Ada county upon the estate of said deceased, and said estate duly administered; and on the sixteenth day of January, 1889, said administrator made his final report therein, which was allowed and approved. It appears that, when said final report was approved, said administrator had in his hands $ 6,093.34 in cash belonging to said estate, the lands above described, and certain certificates of water stock; that said cash was turned into the state treasury, and the administrator discharged. It also appears that said deceased was a foreigner, and that no heirs or claimants have appeared and claimed said estate, or any part of it. It also appears from the answer of the defendant that said real estate was assessed for county and state purposes in the year 1893, and, the taxes not having been paid, became delinquent; that said real estate was sold by the tax collector to one F. S. Shirley, for the sum of fifty-one dollars and fifty cents, and thereafter the tax collector conveyed, by tax deed, said premises to said Shirley; that said Shirley thereafter sold and conveyed said premises to the defendant C. C. Stevenson. Said defendant also alleges that he has, in good faith, made valuable improvements upon said premises, to the amount of ninety-five dollars. He also avers that said Hempel died leaving a sister surviving him, residing in Vienna, Austria, whose name was unknown to defendant. The issues being thus made, counsel for the state moved for judgment on the pleadings, which motion was granted, and judgment entered against the defendant. The appeal is from the judgment. Several errors are assigned, all to the effect that the court erred in sustaining plaintiff's motion for judgment on the pleadings.

The several sections of the Revised Statutes applicable to this case are as follows:

"Sec 5715. Resident aliens may take in all cases, by succession as citizens; and no person capable of succeeding under the provisions of this title is precluded from such succession by reason of the alienage of any relative; but no nonresident foreigner can take by succession, unless he appears and claims such succession within five years after...