Walther v. Steward

• Citation: 88 P.2d 475,54 Wyo. 160
• Decision Date: 21 March 1939
• Docket Number: 2085
• Parties: WALTHER v. STEWARD
• Court: Wyoming Supreme Court

88 P.2d 475

54 Wyo. 160

WALTHER v. STEWARD

No. 2085

Supreme Court of Wyoming

March 21, 1939

APPEAL from the District Court, Albany County; V. J. TIDBALL, Judge.

Action by W. W. Walther, administrator of the estate of Roger Juyn deceased, against S. M. Steward to recover taxes paid and value of improvements placed upon property purchased by intestate at tax sale. From a judgment for the plaintiff defendant appeals.

Affirmed.

For the defendant and appellant, the cause was submitted on the brief of Cassius M. Eby of Laramie.

Plaintiff did not sue "as" administrator and this is not a representative action. Beers v. Shannon, 73 N.Y 292. Ferris v. Jones, 189 P. 527. Ry. v. Baliar R. R. Co., 65 N.E. 1008. Cook v. Elmore, 25 Wyo. 393. The original petition set forth no claim for improvements on subsequent taxes paid by Juyn, although evidence was received with reference thereto of plaintiff's objection. The trial court ruled that facts as to improvements and taxes paid, might be shown by amendment or supplemental pleading after the question of title had been decided. The evidence offered with respect to the cost of improvements was incompetent, as the only point that could be shown was how much the improvements increased the value of the property. 31 C. J. 334, Sec. 89-3911 R. S. See also Sec. 89-3909 R. S. This court has held that no certificate of sale is necessary from the County Treasurer for property he bids in for the County. Barrett v. Barrett, 46 Wyo. 95. No question of damages for improvements was involved in that case, but under the occupying claimant's act, the requirement of a deed or certificate is mandatory. A claim for taxes paid, cannot come under the occupying claimant's act which relates to improvements only. Taxes are covered by another statute, Sec. 89-2951. Brewer v. Folsom Bros., 43 Wyo. 520. Sec. 115-2342 R. S. prescribes the procedure to be followed in selling real estate bid in for the county at the tax sale. Warner v. Pile, 185 P. 1041. Blake v. Blake (Ill.) 102 N.E. 1007. In this case no deed was ever issued by the board, or if issued, was never delivered to Juyn. A mortgagee under a void tax title is without remedy in a suit by the owner to cancel the mortgage as a cloud upon the title. Casper National Bank v. Swanson, 42 Wyo. 113 and cases cited. Juyn was not a good faith grantee. There can be no doubt that Garrison who conveyed to Steward, would be entitled to damages for the rental value of the lands during the period Juyn used and occupied them, so his grantee should have and require the same damages. 8 R. C. L. 1070.

For the plaintiff and respondent there was a brief and oral argument by S. G. Parker of Laramie.

The omission of the word "as" between the name of Walther and that of administrator in the title of the cause is unworthy of consideration. Defendant's answer admits that Walther is administrator of the Juyn estate. The case of Beers v. Shannon, 73 N. J. 292 cited by appellant is not in point. See also Ferris v. Jones (Okla.) 189 P. 527. The Ohio case of R. R. Co. v. City of Baliar, 65 N.E. 1007 cited by appellant may be readily distinguished on the facts. The case of Cook v. Elmore, 25 Wyo. 393 was an action to establish and enforce a trust and is not in point here. The point is without merit. Carr v. Carr (Calif.) 115 P. 261. The court was justified in finding upon the evidence that the improvements increased the value of the land, $ 75.00. Under the testimony, the fence improvements actually cost $ 150.00 and enhanced the value of the property far more than that. The statute, Sec. 89-3909 R. S., is clearly intended to protect occupying claimants, including those holding under defective tax titles. Brewer v. Kulien, 42 Wyo. 314. No bad faith was shown in this case. When the tax sale occurred in November, 1923, the law did not require County Treasurers to execute deeds to purchasers of land that had been bid in by the County at tax sale, Ch. 68, Laws 1929. The claim made by appellant for $ 380.00 rental during which he had no rights whatever in the land is without merit. 2 Thompson on Real Property, page 862. Roger Juyn in 1929 made inquiries and sought information from the County Treasurer about this land and paid the treasurer the amount of money demanded for the land. A deed was issued by the treasurer to Juyn, but it was not placed of record and apparently lost. After Juyn's death, Steward, the appellant procured from the original owner, Garrison, a deed on the theory that the tax sale was void, Chap. 84, Laws 1935 and the succeeding law definitely provided a lien for the amount of taxes and improvements. The case of Brewer v. Folsom apparently settles the matter.

RINER, Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Justice.

This case presents a direct appeal from a judgment rendered by the district court of Albany County. The material facts to be considered now and the course of the litigation in that court at present pertinent are briefly these:

The West Half of the Southwest Quarter of Section 15, Township 18, Range 74 West of the 6th P. M. in Albany County, Wyoming, was assessed for general taxes for the year 1923 to William M. Garrison of Salina, Kansas. This property was thereafter, in 1924, sold to Albany County for non-payment of these taxes. November 7, 1929, one Roger Juyn purchased from that County the property aforesaid and a County Commissioners deed therefor was authorized to be issued. The then County Clerk testified on cross-examination by counsel for appellant, in the course of the hearings subsequently to be mentioned, in connection with this matter, in response to the query whether he remembered delivering this deed to Juyn, that he thought the deed was delivered and that it was mailed to him at Bosler, Wyoming, this recollection being based upon his custom of making deeds when one was called for. This instrument seems never to have been recorded.

Juyn thereafter took possession of the premises aforesaid, raised and cut hay therefrom, and placed improvements on the property in the form of fencing.

March 5, 1936, Juyn died and Walther, the plaintiff and respondent, was on that date appointed administrator of Juyn's estate.

On May 6, 1936, a duplicate quitclaim deed to said property was issued by the Board of County Commissioners of said County to Juyn, said deed being dated November 7, 1929, reciting a payment of $ 99.28 as the consideration therefor, and that it was "understood that this deed was issued in lieu of deed lost, which deed was originally issued November 7, 1929." This conveyance was recorded February 24, 1937, in Albany County, Wyoming. Defendant and appellant, Steward, obtained from W. M. Garrison and wife their quitclaim deed to these premises, said deed being dated May 8, 1936, and recorded in Albany County, Wyoming, May 13, 1936. Under this conveyance Steward took possession of the property and claimed ownership thereof.

August 17, 1936, an action was brought in the district court of Albany County by the plaintiff and respondent here to have the conflicting claims to these premises duly adjudicated. Issues were made up by the several pleadings of the parties, evidence was taken, and on August 5, 1937, the district court aforesaid entered its judgment that plaintiff take nothing by his action. After reciting that, "and it appearing further to the Court from the evidence herein, that the defendant, S. M. Steward, has not reimbursed, or offered to reimburse the plaintiff for the taxes paid by said plaintiff and his intestate, Roger Juyn, and it appearing further to the court that plaintiff claims that he is entitled to the benefit of the Occupying Claimant's Act under the statutes of this state," it was also adjudged that the plaintiff might file within ten days from the date of the said judgment a "supplemental petition or an amendment to his petition, setting forth his claim under such Occupying Claimant's Act and for taxes paid," the defendant being given time to plead thereto, and upon the issues thus joined trial be had. No appeal or other review proceedings were instituted concerning this judgment by either of the parties.

On August 11, 1937, the plaintiff filed his pleading pursuant to the direction contained in the judgment aforesaid, said pleading being designated "Supplemental Petition," wherein he alleged "all jurisdictional facts, previously set forth in his original petition; that plaintiff's intestate had paid Albany County on November 7, 1929, for a deed to the property in question the sum of $ 99.28 and taxes in the total sum of $ 71.57; and that plaintiff's intestate had placed upon the property during his occupancy thereof fencing of the value of $ 125.00. August 23, 1937, the defendant and respondent, Steward, answered this pleading by a general denial for the most part, and claimed as a further defense rental on said lands for the period November 7, 1929, to March 5, 1936, in the sum of $ 60.00 per annum, or a total of $ 380.00.

November 17, 1937, a hearing was had of the issues arising upon these pleadings, and the evidence offered on the former hearing relating to the amount paid by plaintiff and his intestate for taxes and the value of improvements was offered and received by the court, as well as additional evidence on these matters and the issues raised by the pleadings filed subsequent to the judgment of August 5, 1937. December 20 1937, the court rendered its judgment in favor of the plaintiff for $ 170.85, for taxes paid on said property by plaintiff and his intestate, with interest thereon, and $ 75.00 for improvements placed upon the property by Juyn. This judgment also found that the defendant, Steward, was not entitled to recover any rentals as claimed. It is from this judgment the...