Trefren v. Lewis

• Decision Date: 18 May 1993
• Docket Number: No. 92-259,92-259
• Citation: 852 P.2d 323
• Parties: Theodore G. TREFREN, Marjorie Ann Trefren, John A. Trefren, Matthew J. Trefren, David W. Trefren, Paul A. Trefren, Deborah A. Miller and Julie C. Swallow, as joint tenants, Appellants (Defendants), v. Wayne A. LEWIS and Catherine J. Lewis, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

Page 323

852 P.2d 323

Theodore G. TREFREN, Marjorie Ann Trefren, John A. Trefren, Matthew J. Trefren, David W. Trefren, Paul A. Trefren, Deborah A. Miller and Julie C. Swallow, as joint tenants, Appellants (Defendants), v. Wayne A. LEWIS and Catherine J. Lewis, Appellees (Plaintiffs).

No. 92-259.

Supreme Court of Wyoming.

May 18, 1993.

Bernard Q. Phelan, Cheyenne, for appellants.

John B. Rogers and Rachel R. Rouse, Blythe & Lewis, Cheyenne, for appellees.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

GOLDEN, Justice.

In this action by real property owners against tax deed grantees to set aside a tax deed and determine title to real property, the initial question we must answer is whether the action is barred by the statute of limitations within which to contest the validity of a tax deed. If we determine that the action is not time barred, then we must further determine whether the district court at bench trial correctly decided that the tax deed grantees failed to comply with certain statutory notice provisions, which caused the tax deed to be void. Having determined that the district court correctly decided that the action to set aside the tax deed was not time barred and that the tax deed was void due to the tax deed grantees' failure to comply with the pertinent statutory notice provisions, we affirm.

Appellants, tax deed grantees, presented these issues:

1. Did the grantee of a tax deed comply with W.S. § 34-2-132(a) by exercising possession of the real property for the required period of time so as to bar an action to set aside the deed?

2. Must a grantee of a tax deed physically occupy real property when the original owner is provided with actual notice of the grantee's adverse claim, is charged rent, and ordered off the property by the grantee?

3. Was the original owner prejudiced by any defect in the notice procedure utilized to notify interested parties of the application for a tax deed?

4. Is the statute which sets forth the notice procedures for obtaining a tax deed constitutional?

Appellees, real property owners, succinctly rephrased the issues to be:

A. Did the appellants possess the Lewis property pursuant to a tax deed as required by Wyo.Stat. § 34-2-132(a)?

B. Was there a failure on the part of the appellants properly to notify interested parties of their application for a tax deed pursuant to Wyo.Stat. § 39-3-108?

FACTS

In 1974, appellees, Mr. and Mrs. Wayne A. Lewis (owners), purchased from Charles Nixon (seller), under a contract for deed, the west eighty feet of lot 1 and all of lots 2, 3, 4, and 5, block 3, Longview Homesites, Laramie County, Wyoming. Neither the owners nor the seller caused any document evidencing the sale to be made of record. Under the contract, the seller and owners agreed that Rocky Mountain Federal Savings Bank (Bank) would pay the real estate taxes on the property. Owners have occupied the property continuously since 1974 to the present.

For some unknown reason, and without notice to or knowledge of the owners, Bank, which had paid the taxes from 1974 to 1982, discontinued paying the taxes in 1983 on lots 4 and 5 of the property. Consequently, in 1983 the taxes on lots 4 and 5 became delinquent.

In 1984, appellants Mr. and Mrs. Theodore G. Trefren (tax deed grantees) paid the delinquent taxes on lots 4 and 5; they have continued to pay those taxes every year since. At a tax sale held on August 2, 1984, the county treasurer issued to Mrs. Trefren a certificate of sale.

On May 9, 1988, Mrs. Trefren sent a notice of application for tax deed by certified mail to seller, as holder of the lots. The tax deed grantees did not send to the owners any notice of the application for tax deed. The notice of application to the seller was returned because the forwarding order had expired. At Mrs. Trefren's direction, a notice of application for tax deed was published in the Wyoming State Tribune on May 6, 13, and 20, 1988. On or about May 18, 1988, the tax deed grantees physically located and viewed lots 4 and 5. They saw that a continuous fence made of split rail and wire enclosed the entire property, that is, the west eighty feet of lot 1 and all of lots 2, 3, 4, and 5. The lots are described as "semi-rural." On lots 2 and 3, the owners reside on a knoll in a house surrounded by a chain link fence. A gully runs between lots 3 and 4; a bridge traverses the gully. Prairie grass grows on lots 4 and 5; a horse stall or shed sits on those lots. Owners use the shed for storage.

On May 25, 1988, about a week after the tax deed grantees physically located and viewed lots 4 and 5, they applied to the county treasurer for a tax deed. On August 25, 1988, the county treasurer issued a tax deed to them. They recorded that instrument.

In April, 1991, the owners learned of the tax deed grantees' claim to lots 4 and 5. One of the owners' neighbors saw the tax deed grantees near the gully area of the property and asked what they were doing there. The tax deed grantees replied they were measuring for a metal garage. The neighbor told them the property belonged to the owners, and the tax deed grantees said they had obtained the property for nonpayment of taxes. After leaving the tax deed grantees, the neighbor called one of the owners, relating what had happened. That evening the tax deed grantees called the owners and told them they had acquired a tax deed on lots 4 and 5. The owners posted the entire tract with "no trespass" signs. The tax deed grantees honored the signs and refrained from again entering the property.

On May 31, 1991, the owners received the tax deed grantees' letter in which they asserted their possessory interest, a five-dollar a day storage charge, and a request that the owners remove their personal property and "no trespass" signs from the lots. In August, 1991, the owners received the tax deed grantees' letter in which they demanded payment of $340 for rent. In On December 6, 1991, the owners filed this action to set aside the tax deed. The tax deed grantees answered, pleading a general denial and an affirmative defense that the statute of limitations in WYO.STAT. § 34-2-132 (1990) barred the action; the tax deed grantees' answer also asserted a counterclaim seeking quiet title under WYO.STAT. § 1-32-201 (1988).

reply, owners' attorney sent a letter to the tax deed grantees threatening litigation if they refused the owners' offer to reimburse them for the money paid on the delinquent taxes.

Following discovery, each party moved for summary judgment; the trial court denied each after a hearing and conducted a bench trial on August 28, 1992. On October 7, 1992, the trial court issued its decision letter announcing a decision in favor of the owners. Judgment was entered on October 19, 1992. The tax deed grantees timely filed their notice of appeal.

DISCUSSION

1. Statute of Limitations.

The initial question we must answer is whether the owners' action to set aside the tax deed is barred under the language of WYO.STAT. § 34-2-132(a) (1990):

(a) No action, suit or other proceeding shall be commenced by the former owner to set aside, declare invalid or redeem from a tax deed or the sale, forfeiture, foreclosure or other proceeding upon which it is based or to recover possession, quiet title or otherwise litigate or contest the title of the grantee, if:

(i) Two (2) years or more have elapsed after the date of recording the deed in the office of the county clerk and ex officio register of deeds for the county in which the real estate described in the deed is situated; and

(ii) The grantee has been in possession of the real estate continuously for a period of at least six (6) months, at any time after one (1) year and six (6) months have elapsed since the date of recording of the tax deed.

The parties agree that the requirement of subparagraph (i) has been met since the owners filed the December, 1991 action more than two years after the tax deed grantees recorded the tax deed in August, 1988.

The parties' battle line is drawn at whether the requirement of subparagraph (ii) has been met. Specifically, they debate whether the tax deed grantees have "been in possession" of lots 4 and 5 for a period of at least six months. The resolution of their debate depends upon the meaning of the statutory language "in possession." The tax deed grantees contend that those words do not mean actual physical entry upon and physical occupation of the lots in question. The owners assert, and the district court held, that those words mean exactly that. And so it is that the sharp point of this debate is a question of statutory construction which is, of course, a question of law. If the district court's conclusion of law is correct, we affirm; if it is incorrect, we correct it. Parker Land & Cattle Co. v. Wyoming Game & Fish Comm'n, 845 P.2d 1040, 1042 (Wyo.1993).

In Parker this court comprehensively reviewed statutory construction methodology. That methodology shall be applied here to the extent necessary to achieve our primary objective of ascertaining and giving effect to the lawgiver's intent. Parker, at 1040.

We begin with the words. The legislature has supplied its own dictionary. The word "possession" is defined as follows:

"Possession" refers to possession, and to the extent of possession, as determined by the rules applicable in determining the existence of adverse possession under a written instrument constituting color of title and includes possession by tenant or agent.

WYO.STAT. § 34-2-131(a)(iv) (1990) (emphasis added). Thus, we must look to "the rules applicable in determining the existence of adverse possession under a written instrument constituting color of title." It is well settled Wyoming law that adverse possession of real property is an actual, visible, and exclusive appropriation of land, commenced and continued under a claim of right, with the intent to assert such claim against the true owner, and accompanied by such an invasion...