Steltz v. Morgan

• Decision Date: 21 April 1909
• Parties: GEORGE STELTZ, Respondent, v. HENRY A. MORGAN, Appellant
• Court: Idaho Supreme Court

101 P. 1057

16 Idaho 368

GEORGE STELTZ, Respondent, v. HENRY A. MORGAN, Appellant

Supreme Court of Idaho

April 21, 1909

TRESPASS-CONSTRUCTIVE POSSESSION-TAX TITLE-RIGHT OF POSSESSION UNDER TAX TITLE.

1. Under an action of trespass quare clausum fregit where the plaintiff does not allege title either in fee or for a term in himself, he must show actual possession of the realty at the time of the trespass.

2. A legal and valid conveyance of real estate, whether it be by tax deed or deed from the original owner, carries with it a prima facie right of possession, and where the property is vacant and unoccupied, the constructive possession of the premises is deemed to be in the holder of the title.

3. In order for one who was the original owner of real estate and whose title has been divested through taxation and a tax deed, to maintain an action of trespass against the holder of a valid tax deed for entering into possession of the premises, such original owner must maintain and be in actual possession of the premises at the time of the trespass.

4. The holder of a tax title to real estate who finds the property unoccupied may enter upon and take actual possession of the premises, and in doing so he is not liable to the original owner of the property whose title has been divested by the tax deed.

5. A tax deed has no more force or effect as a writ of assistance for procuring the possession of real estate than any other deed, and the holder of such deed who finds the property occupied must, if the occupant refuses to surrender possession, resort to the same legal remedy for possession as the holder of any other deed would employ.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District, for the County of Latah. Hon. Edgar C. Steele, Judge.

Action by the plaintiff for damages occasioned by trespass on real estate. Judgment for plaintiff and defendant appealed. Reversed.

New trial granted, and cause remanded. Costs awarded in favor of appellant. Petition for rehearing denied.

W. E Stillinger, for Appellant.

"The law does not require, to perfect a tax title, that the divested owner shall voluntarily place the purchaser in possession, or that the purchaser shall, in the absence of resistance, institute legal proceedings and be put in possession by the sheriff; but the purchaser may himself take possession whenever he can do so without difficulty." (2 Cooley on Taxation, p. 1056.)

One may maintain trespass for injury to his possession only when he has the actual possession and so alleges, or when he is the owner in fee and further shows by his petition that the land is unoccupied and the plaintiff has the constructive possession thereof. (Canavan v. Gray, 64 Cal. 5, 27 P. 788.)

S. S Denning, for Respondent.

If the plaintiff was in possession of the premises at the time the alleged trespass was committed, that is all that is necessary to give the right of action, as his possession need not continue up until the time of suit. (Suth. on Dam., sec 1009.)

AILSHIE J. Sullivan, C. J., and Stewart, J., concur.

OPINION

AILSHIE, J.

This action was instituted by George Steltz, as administrator of the estate of Gray Sterling, deceased, for the purpose of recovering from defendant the sum of $ 2,000 damages for a trespass on real estate. Plaintiff alleges that he is the duly appointed and acting administrator of the estate of Gray Sterling, deceased, and that at the time of the death of Gray Sterling, she was in the actual and peaceable possession of lot 2 of block 24 of the town of Genesee, and that ever since her death the plaintiff, as administrator, has been in the actual, peaceable and quiet possession of that property. It is further alleged that in January, 1908, the defendant forcibly, wrongfully, unlawfully and maliciously entered and trespassed upon this property, and pulled down and destroyed one building thereon of the value of $ 500, and by reason thereof the estate has been injured and damaged in the sum of $ 1,500. Defendant denied specifically all the material allegations of the complaint, except the taking down and removing of the house and the official character of the plaintiff as administrator of the estate of Gray Sterling, deceased. Defendant further answered and alleged that in the year 1902 the lot in question belonged to one Maggie Anderson, and that in September of that year she conveyed and transferred the property to Gray Sterling; that Gray Sterling died about the month of October, 1902, and that thereafter the plaintiff was appointed administrator of her estate; that the property in question, lot 2 of block 24 of the town of Genesee, was duly and regularly assessed for taxation for the year 1902, to Maggie Anderson, and the taxes so assessed were not paid, and thereafter became delinquent; that the property was duly and regularly advertised for sale for nonpayment of the taxes, and at the sale, no buyer appearing, the property was struck off to Latah county, that after the expiration of the time for redemption, the assessor made, executed and delivered to the county of Latah a tax deed in conformity with law; that thereafter the county of Latah sold the property at public auction, as provided by law, to one John Thompson; that Thompson thereafter sold and transferred the property to one Joseph Hasfurther, and that the latter thereafter sold the house standing on this lot to the defendant Morgan. Morgan alleges that subsequent to the purchase of the house he entered upon the premises and tore down the building and removed it, and that the property so removed was his own property.

The plaintiff made no attempt at the trial to show title to the property, but rested upon possession alone. The defendant introduced his evidence showing chain of title through tax deed for taxes assessed for the year 1902. Plaintiff did not question the regularity of the tax sale nor of the tax title. Plaintiff's position is perhaps best illustrated by the objection that was interposed by his counsel to the introduction of tax deed and other records establishing his chain of title, which objection is as follows: "Objected to on the ground that even supposing the parties had purchased a tax title, and were acting under this tax title and though the tax title may show prima facie evidence of title, still the parties holding such tax title cannot proceed summarily and take possession of the property without due process of law; second, that the defendant has neither pleaded justification or any fact in...