Western Loan & Building Co. v. Bandel

• Decision Date: 30 November 1936
• Docket Number: 6397
• Citation: 57 Idaho 101,63 P.2d 159
• Court: Idaho Supreme Court
• Parties: WESTERN LOAN & BUILDING COMPANY, a Corporation; JOHN S. CONNELL and EARL THORNTON, Appellants, v. LILLIA M. BANDEL and C. A. BANDEL, Her Husband, Respondents

63 P.2d 159

57 Idaho 101

WESTERN LOAN & BUILDING COMPANY, a Corporation; JOHN S. CONNELL and EARL THORNTON, Appellants, v. LILLIA M. BANDEL and C. A. BANDEL, Her Husband, Respondents

No. 6397

Supreme Court of Idaho

November 30, 1936

MUNICIPAL CORPORATIONS - IMPROVEMENT ASSESSMENT ROLL, SUFFICIENCY OF-CONSTITUTIONAL LAW-ACTION TO QUIET TITLE-VOID TAX DEED-ESTOPPEL-PLEADING-RECOVERY OF RENTAL VALUE.

1. Local improvement district assessment roll is public record to which property owners are entitled to look for information as to whether their property has been assessed. (I. C. A sec. 49-2515.)

2. Local improvement district assessment roll, made pursuant to ordinance requiring description of assessed property purporting to assess property in name of contract vendee by description merely referring to tax list in which property was misdescribed, held insufficient on which to base delinquency certificates, and deed to holder thereof especially in absence of showing by whom tax list was made or authorized and purpose thereof. (I. C. A., sec. 49-2515.)

3. Under constitutional requirement of due process, requirements of statute that assessment roll name owner of property assessed or described property held jurisdictional and not to relate to mere irregularities in assessment proceeding, and hence statutory provision for appeal within five days as exclusive means of attack on assessment would not bar suit attacking assessment for failure to comply with such provision. (I. C. A., secs. 49-2915, 49-2516 to 49-2518, 49-2520; Const., art. 1, sec. 13.)

4. "Due process of law" requires that one be heard before his rights are adjudged, and is not necessarily satisfied by any process which legislature may provide, but by such process only as safeguards and protects fundamental constitutional rights of persons, whether natural or artificial. (Const., art. 1, sec. 13.)

5. Defense of estoppel held not available where it was not pleaded.

6. In suit to quiet title to and recover possession of realty in possession of defendants under void tax deed, complaint held not insufficient for failure to allege issuance or invalidity of tax deed.

7. In suit to quiet title to and recover possession of realty in possession of defendants under tax deed executed by city on failure of owners to redeem after issuance of delinquency certificate for nonpayment of municipal improvement assessments, failure of owner to deny by affidavit genuineness and due execution of deed held not to admit title to property while in city or person who executed deed so as to preclude them from questioning its effect, or from asserting that it did not convey title. (I. C. A., sec 5-704.)

8. Rental value of premises held recoverable in suit to quiet title.

9. In suit to quiet title and recover possession of realty as against grantee of invalid deed issued to purchaser of delinquency certificate for amount of invalid improvement assessments, amount paid by grantee for delinquency certificate, deed, recording fee, and taxes on and improvement of property, held required to be deducted from amount due owners by grantee as rental for use and occupancy of premises. (I. C. A., secs. 49-2515, 49-2516 to 49-2518, 49-2520.)

APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. Guy Stevens, Presiding Judge.

Action to quiet title to, and to recover possession of, real property, and for rental value thereof during occupancy by defendants. Judgment for defendants. Reversed.

Reversed and remanded with instructions. Costs to appellants. Petition for rehearing denied.

F. L. Soule, for Appellants.

The statute and cases controlling, require description and accurate description of one's property in tax proceedings, to take it by tax deed. (I. C. A., secs. 49-2515, 61-220, 61-1901; Miller v. Williams, 135 Cal. 183, 67 P. 788; Wilson v. Jarron, 23 Idaho 563, 131 P. 12; Blayden v. Morris, 37 Idaho 37, 214 P. 1039.)

The curative provisions of the law relating to village special improvement proceedings, such as are before us in this case, are confined only to irregularities and informalities, but have no application to defects going to the jurisdiction. (Quivey v. Lawrence, 1 Idaho 313; Armstrong v. Jaron, 21 Idaho 747, 125 P. 170; Seattle Cedar Lbr. Mfg. Co. v. City of Ballard, 50 Wash. 123, 96 P. 956; Liebermann v. City of Milwaukee, 89 Wis. 336, 61 N.W. 1112.)

C. A. Bandel and O. R. Baum, for Respondents.

The omission of "declaring its intention to make the improvements" in a resolution of intention required in street improvement proceedings is not jurisdictional because decision of city council on all protests to creation of district or making of improvements is final and conclusive, and after decision, said council is deemed to have acquired jurisdiction to order improvements. (I. C. A., secs. 49-2510, 49-2512; Bell v. Moscow, 48 Idaho 65, 279 P. 1095; Wheeler v. City of Caldwell, 48 Idaho 77, 279 P. 412.)

The general rule is that objections to an assessment in a special improvement district are deemed to be waived, if not presented at the time and in the manner prescribed by law, and the principle of estoppel applies. (Moore v. Yonkers, 235 F. 485, 149 C. C. A. 31, 9 A. L. R. 593; Caldwell v. Village of Mountain Home, 29 Idaho 13, 23, 156 P. 909; I. C. A., secs. 49-2517, 49-2518, 49-2520.)

MORGAN, J. Givens, C. J., and Budge and Ailshie, JJ., concur. Holden, J., did not participate in the decision.

OPINION

MORGAN, J.

Prior to and on December 24, 1926, appellant, Western Loan & Building Company, hereinafter called the company, was the owner, in fee simple, of a tract of land 25 feet wide and 135 feet long lying immediately adjacent to the west side of the south half of Block 4 in Mathias Addition to Rigby, being a part of a strip of land 25 feet wide lying along the west side of said addition which is neither included in the lots and blocks thereof nor dedicated to the public. That day the company entered into a contract with John S. Connell and Earl Thornton, who were therein referred to as "co-partners doing business as Rigby Grocery Corporation," wherein it was agreed that the company should sell to them and they should purchase from it the property for $ 4,000. $ 55.20 was paid when the contract was entered into and additional payments of at least $ 55.20 were to be made monthly thereafter until the entire purchase price, together with interest thereon, should be paid in full. It was further agreed that, when the entire purchase price was paid, the company would execute and deliver to Connell and Thornton a deed conveying the property to them and they were to pay all taxes and assessments levied against it after 1926. The contract was not recorded.

November 6, 1928, the city council of Rigby, by unanimous vote, adopted a resolution declaring its intention to create local improvement district No. 2 for the purpose of improving Main Street of said city from the west side of Railroad Avenue to the east side of State Street. Thereafter such proceedings were had that an ordinance was enacted creating said improvement district, wherein it was provided: "That the costs and expenses of the improvements mentioned in the foregoing sections of this ordinance shall be taxed and assessed upon all the property in such Local Improvement District in proportion to the number of square feet of such lands and lots abutting, adjoining, contiguous and adjacent thereto, included in the Improvement District formed and in proportion to the benefits derived to such property by said improvements." The land above described abuts upon a part of Main Street proposed to be improved.

It was further provided in the ordinance that the committee on streets, together with the city engineer, should make an assessment roll, and: "That the said assessment roll shall contain, among other things, the number of the assessment, the names of the property owners affected by the proposed improvements if known, or if not known that the name is unknown, together with a description of each piece, lot, or parcel of land assessed and the total amount assessed against each piece, lot or parcel of land."

In the assessment roll made, or attempted to be made, pursuant to the ordinance the land herein involved was not described. The roll was made on a blank provided for that purpose which was so arranged that it should contain, among other things, the name of the owner of the property and the number of the lot or lots assessed and the block wherein located. In line 9, page 2 of the roll, under the caption "Name of Owner," appears "Rigby Grocery"; under the caption "Lots" appears "Tax # 15," following which are ditto marks, referring to the top line of that column, in which is written "Lot # 1 Rigby Orig," and under the caption "Block" appears "15."

The above entries, with the exception of the printed captions "Name of Owner," "Lots" and "Block" are written in ink, and a witness, who was city treasurer when the roll was made, testified he made it and wrote into line 9 the words and figures appearing therein in ink. In that line, under the caption "Lots," there has been written, with lead pencil, the words "Mathias Add," and under the caption "Block" has been written with lead pencil, over the 15, a figure 4. It was not shown when, by whom, or for what purpose these pencil entries were made.

The cost of the improvement was made payable in installments, and the first installment of the assessment sought to be levied against the property involved herein was not paid. July 15, 1930, a delinquency certificate was issued showing there was due and delinquent $ 20.45, together with 40 cents penalty and $ 1.00 delinquency certificate fee. A certified copy of the duplicate...