White Pine Mfg. Co. v. Morey

• Decision Date: 14 December 1910
• Citation: 19 Idaho 49,112 P. 674
• Parties: WHITE PINE MANUFACTURING CO., Respondent, v. PETER MOREY, Appellant
• Court: Idaho Supreme Court

112 P. 674

19 Idaho 49

WHITE PINE MANUFACTURING CO., Respondent, v. PETER MOREY, Appellant

Supreme Court of Idaho

December 14, 1910

REVENUE-TAX SALE-TAX SALE CERTIFICATE-TAX DEED-CORRECTION OF TAX DEED-RIGHT OF REDEMPTION.

(Syllabus by the court.)

1. A tax sale certificate issued under the provisions of sec. 1759 of the Rev. Codes, which recites that the tax for which the property was sold was, "State and county, $28.00 penalty and costs, $3.05; total, $31.05," and leaves blank the spaces following the enumeration of poll tax, city town, village and Independent School district tax, is a substantial compliance with the statute, for the reason that such statement on its face excludes the idea that the taxes for which the property was sold included anything other than "state and county tax," and "penalties and costs."

2. Where a tax sale certificate shows on its face the year for which the tax was assessed, and a deed thereafter issued leaves the year blank and does not show upon its face the year for which the tax was assessed, it is competent and proper for the officer on discovering the mistake to execute a new deed for the correction of the error.

3 Secs. 1763 and 1764 of the Revised Codes must be construed together, and when so construed only require the officer making a tax deed to incorporate therein "substantially the matters contained in the certificate," and a substantial compliance therewith is all that is necessary.

4. Under the provisions of sec. 1653 of the Rev. Codes, dealing with the assessment and collection of taxes, "no mistake in the name of the owner or supposed owner of real property shall render the assessment thereof invalid"; and under the provisions of sec. 1788, no informality will render an assessment, or any act relating to an assessment, or the collection of a tax illegal.

5. Where a tax deed was not in fact made, executed and delivered until after the time for redemption by the property owner had expired, it is not fatal to the deed and will not render it invalid if it recite upon its face that the purchaser or his assignee was entitled to a deed one day earlier than he was in fact entitled to it under the law.

6. Where the proceedings have been in substantial compliance with the law and the tax sale has been made in substantial conformity therewith, and the time within which the land owner may redeem is fixed and limited by the statute, there is no right of redemption, whether a deed has been issued or not, after the expiration of the statutory period allowed for redemption.

7. Where the power is vested in an officer to execute a tax deed, such power and authority is not exhausted until a deed is made in compliance with the law, provided the preceding steps have been taken in accordance with the law as the same appears of record in his office. The making of an insufficient, defective and invalid deed does not exhaust the power of the officer where the facts exist upon which a valid deed may be made.

APPEAL from the District Court of the Second Judicial District, in and for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action by plaintiff to quiet title. Judgment for plaintiff and defendant appealed. Reversed.

Reversed and remanded. Costs awarded in favor of appellant.

C. H. Lingenfelter, for Appellant (Eugene A. Cox, of Counsel).

A reading of the sections of the Idaho code pertaining to the subject shows conclusively that the law of this state does not even contemplate that the name of the owner must be correctly placed in the assessor's list. (Secs. 1345, 1346, 1321, and 1455.)

Under a tax system making taxes a lien upon property, the sole and only purpose for directing that property shall be assessed to the owner or claimant is from an enlarged spirit of fairness and accommodation, and not because such procedure is essential to the validity of the taxes. (McQuade v. Jaffray, 47 Minn. 326, 50 N.W. 233; Williams v. Pittock, 35 Wash. 271, 77 P. 385; Lake Co. v. Sulphur Bank etc. Co., 66 Cal. 17, 4 P. 876; Klumpke v. Baker, 131 Cal. 80, 63 P. 137, 676; Landregan v. Peppin, 86 Cal. 122, 24 P. 859; Coolidge v. Pierce County, 28 Wash. 95, 68 P. 391; Woodward v. Taylor, 33 Wash. 1, 73 P. 785, 75 P. 646; Helms v. Wagner, 102 Ind. 385, 1 N.E. 730; Bradley v. Bouchard, 85 Mich. 18, 48 N.W. 208; Taber v. State, 38 Tex. Civ. 235, 85 S.W. 835.)

The statutes of this state make the tax deed prima facie evidence that "at a proper time and place the property was sold, as prescribed by law."

It is clear from the most cursory reading of the Idaho statutes, that a sale of the property on the fifty-second day was not necessarily improper. (Secs. 1417, 1418, 1419, Rev. Codes; Love v. Welch, 33 Iowa 192; Bullis v. Marsh, 56 Iowa 747, 2 N.W. 578, 6 N.W. 177; Harris v. Curran, 32 Kan. 580, 4 P. 1044; Stafford v. Lauver, 49 Kan. 690, 31 P. 302; Clark v. Tilden, 72 Kan. 574, 84 P. 139; Patterson v. Carruth, 13 Kan. 494; Morrill v. Douglass, 17 Kan. 291, 293; Jordan v. Kyle, 27 Kan. 190; Lacey v. Davis, 4 Mich. 140, 66 Am. Dec. 524; Hill v. Atterbery, 88 Mo. 114.)

The suggestion that a tax deed must show "all the requirements of the law have been complied with" is in flat contradiction of the Idaho statute. The early California cases cited do not so hold, because in each of them the deed itself on its face showed a void assessment. In addition, the doctrine they stand for has been expressly repudiated in California under a tax system which is substantially different from that prevailing in California at the time they were rendered, and which is almost completely copied into the Idaho laws. (Hayes v. Ducasse, 119 Cal. 682, 52 P. 121.)

All that is required in point of conformity between the deed and the certificate is substantial identity of recital. (Doland v. Mooney, 79 Cal. 137, 21 P. 436; Stout v. Coates, 35 Kan. 382, 11 P. 151; Muirhead v. Sands, 111 Mich. 487, 69 N.W. 826; Hewes v. McClellan, 80 Cal. 393, 22 P. 287; Rollins v. Wright, 93 Cal. 395, 29 P. 58.)

A recital in the deed of a step in the proceedings which may be consistent with proper procedure cannot be relied upon to overcome the prima facie effect of the deed itself. (Hoge v. Magnes, 85 F. 355, 29 C. C. A. 564; Cane v. Herndon, 107 La. 591, 32 So. 33; Wright v. Dunham, 13 Mich. 414; Pleasants v. Scott, 21 Ark. 370, 76 Am. Dec. 403; Cramer v. Stone, 38 Wis. 259.)

A second tax deed is properly executed by the tax collector when his first deed is defective, and it is the imperative duty of such official to furnish such deed to the owner of the tax title, and such second deed, no matter at what stage of the proceedings it is issued, is admissible in evidence with all the evidential effect given by statute to tax deeds. (McCready v. Sexton, 29 Iowa 356, 4 Am. Rep. 214; Douglass v. Nuzum, 16 Kan. 515; Finley v. Brown, 22 Iowa 538; Brien v. O'Shaughnesy, 71 Tenn. 724; Bank v. Mersereau, 3 Barb. Ch. 528, 49 Am. Dec. 189; Smith v. Griffin, 14 Colo. 429, 23 P. 905; Duggan v. McCullough, 27 Colo. 43, 59 P. 743; State ex rel. White v. Winn, 19 Wis. 304, 88 Am. Dec. 689; Clippinger v. Tuller, 10 Kan. 377; Hart v. Smith, 44 Wis. 213; 2 Blackwell, Tax Titles, sec. 1073; 2 Cooley, Taxation, p. 1370; 2 Desty, Taxation, p. 910; Black, Tax Titles, sec. 408.)

The respondent's entire title and interest in the premises covered by the appellant's tax deeds expired with the expiration of the three years allowed by statute in which to redeem, and the holder of the tax title, if the tax proceedings were regular, acquired at that date an indefeasible interest. (Blackwell, Tax Titles, sec. 734; Pearson v. Robinson, 44 Iowa 413; Beggs v. Paine, 15 N.D. 436, 109 N.W. 322; McMillan v. Hogan, 129 N.C. 314; 40 S.E. 63; Levy v. Newman, 130 N.Y. 11, 28 N.E. 660; Dumphey v. Hilton, 121 Mich. 315, 80 N.W. 1; Quinn v. Kenney, 47 Cal. 147; Pollen v. Magna Charta Min. & Mill. Co., 40 Colo. 89, 90 P. 639; Scofield v. McDowell, 47 Iowa 129; Wood v. Coad, 120 Iowa 111, 94 N.W. 264; Keeley v. Sanders, 99 U.S. 441, 25 L.Ed. 327; Bitzer v. Becke (Iowa), 89 N.W. 193.)

Clay McNamee, for Respondent.

The recitals in the tax deed must be identical with those in the tax certificate. (Hughes v. Cannedy, 92 Cal. 382, 28 P. 573; Anderson v. Hancock, 64 Cal. 455, 2 P. 31; De Frieze v. Quint, 94 Cal. 653, 28 Am. St. 151, 30 P. 1; Grimm v. O'Connell, 54 Cal. 522; Daly v. Ah Goon, 64 Cal. 512, 2 P. 401.)

A tax deed must show that all the requirements of the law from first to last have been complied with. (Ferris v. Coover, 10 Cal. 632; Ferris v. Chapman, 10 Cal. 589; Kelsey v. Abbott, 13 Cal. 609; Lachman v. Clark, 14 Cal. 131.)

"A tax deed will be set aside if one substantial defect is found in the proceedings." (Vestal v. Morris, 11 Wash. 451, 39 P. 960.)

A defective tax deed cannot be cured by the issuance of a second or correctionary deed, as is sought in this case. (Vestal v. Morris, supra; Hewitt v. Storch, 31 Kan. 488, 2 P. 556.)

Where the legislature has provided a form of deed, that form must be followed, otherwise the deed will be void, it matters not how slight the variation may be. (Grimm v. O'Connell, 54 Cal. 522; Anderson v. Hancock, 64 Cal. 455, 2 P. 31.)

When it is shown that the notice of sale for taxes was not given in substantial conformity with the statute, the sale will be adjudged invalid, notwithstanding the tax deed, in proper form, may have been duly executed and recorded. (Morris v. St. Louis Nat. Bank, 17 Colo. 231, 29 P. 802; Olsen v. Bagley, 10 Utah 492, 37 P. 739.)

AILSHIE, J. Sullivan, C. J., concurs.

OPINION

AILSHIE, J.

This action was instituted by plaintiff to quiet its title to a certain tract of land situated in that part of Nez Perce county which formerly belonged to Shoshone county. The plaintiff traces its title by...