Wilson v. Jarron

• Decision Date: 18 March 1913
• Parties: ALBERT E. WILSON and ELVIRA B. WILSON, Appellants, v. W. B. JARRON, Respondent
• Court: Idaho Supreme Court

131 P. 12

23 Idaho 563

ALBERT E. WILSON and ELVIRA B. WILSON, Appellants, v. W. B. JARRON, Respondent

Supreme Court of Idaho

March 18, 1913

DELINQUENT TAX SALE-DESCRIPTION OF PROPERTY SOLD-TAX DEED-DESCRIPTION OF PROPERTY CONVEYED.

1. A tax sale certificate describing lands sold as "S. 1/2 N.W. 4, sec. 1, twp. 4, range 2" is insufficient and invalid, for the purpose of furnishing a description on which a valid tax deed can be executed, and a tax deed executed on such certificate after the expiration of the time allowed for redemption which describes the property as "The South 1/2 of the Northwest 1/4 of sec. one (1) twp. four (4) north, range two (2) West of Boise Meridian Canyon county, State of Idaho," is not a substantial compliance with the provisions of secs. 1763 and 1764 of the Rev. Codes, which require a tax deed to contain the same description and recitals contained in the tax sale certificate.

2. In issuing a tax deed, the officer executing the same in describing the property may extend abbreviations contained in the certificate and make a fuller and more complete description of land which was sufficiently described in the tax sale certificate, but he has no right or authority to add to or complete an incomplete and insufficient description contained in the tax sale certificate, and he has no authority to go beyond the certificate for extraneous evidence describing the property intended to be described in the certificate.

3. More strictness is required in the description in an assessment where the property is to be sold for delinquent taxes than is required in a deed of conveyance from the grantor to the grantee. In the former case, parol or extraneous evidence is not admissible, while in the latter case it may become admissible.

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.

Action to quiet title. Judgment for defendant. Plaintiffs appealed. Reversed.

Reversed and remanded, with direction. Costs of this appeal awarded in favor of appellants.

B. F Neal, for Appellant.

The court erred in holding the deed to be valid for the reason that the property described in the tax sale certificate is not shown to be the property described in the deed, and for the reason that the description contained in the tax sale certificate is uncertain and insufficient and unintelligible, and cannot be the basis of a conveyance of property in tax proceedings. (Miller v. Williams, 135 Cal. 183, 67 P. 788; Keith v. Hayden, 26 Minn. 212, 2 N.W. 495; Wright v. Fox, 150 Cal. 680, 89 P. 832; Wolford v. McKinna, 23 Tex. 36, 76 Am. Dec. 53; Stout v. Mastin, 139 U.S. 151, 11 S.Ct. 519, 35 L.Ed. 121; Glover v. Newsome, 132 Ga. 796, 65 S.E. 64; Hartigan v. Hoffman, 16 Wash. 34, 47 P. 217; Devlin on Real Estate, 3d ed., sec. 1011a.)

Parol evidence cannot be received, for the purpose of showing a proceeding required by law to be made a matter of record. (12 Enc. Ev. 301; State v. Central P. Ry., 17 Nev. 259, 30 P. 887, 890; Morrison v. Lawrence, 98 Mass. 219.)

"Where the statute requires evidence of a fact to appear of record, it is a general rule that the record alone can be looked to as evidence of such fact, and where there is a failure to set it forth in the record as required, the defect cannot be supplied by parol evidence." (10 Ency. of Ev. 1004; Miner v. McLean, 4 McLean, 138, 17 F. Cas. No. 9630; Mullins v. Shaw, 77 Miss. 900, 27 So. 602, 28 So. 958; McGrath v. Wallace, 116 Cal. 548, 48 P. 719.)

The title to be acquired under the statutes authorizing the sale of land for the nonpayment of taxes is regarded as stricti juris, and whoever sets up a tax title must show that all of the requirements of the law have been complied with. (Cooley Taxation, 470, 471; Blackwell Tax Titles, secs. 121-125; Olsen v. Bagley, 10 Utah 492, 37 P. 739; Marx v. Hanthon, 148 U.S. 172, 180, 13 S.Ct. 508, 37 L.Ed. 410, 413; Guptill v. Kelsey, 6 Cal.App. 35, 91 P. 409.)

Rice, Thompson & Buckner and James B. Cordiner, for Respondent.

Appellants' contention that the tax deed is void for the reason that the tax sale certificate does not describe the same land as that described in the said deed is without merit, and should not be sustained. (Baird v. Monroe, 150 Cal. 560, 89 P. 352; Best v. Wohlford, 144 Cal. 733, 78 P. 293; Devlin on Real Estate, 3d ed., secs. 1012, 1013a.)

"For the purpose of applying a defective description and identifying the property conveyed, the court may look to other facts and circumstances suggested by the description. Resort may be had to tax proceedings as well as to the conduct of the parties in connection with the use and control of the ground." (Herod v. Carter, 81 Kan. 236, 106 P. 32.)

The court will take judicial notice that "township four, range two, in Canyon county," must be "township four north, range two west of the Boise meridian," because there is no township four south of the base line or range two east of the Boise meridian in said county. (Armstrong v. Jarron, 21 Idaho 747, 125 P. 177; Stanton v. Hotchkiss, 157 Cal. 652, 108 P. 864; sec. 5950, Rev. Codes.)

The abbreviations used in the aforesaid tax sale certificate are authorized by sec. 1787, and are clearly sufficient. (Oregon Short Line v. Irrigation Dist., 16 Idaho 606, 102 P. 904; Washington Timber Co. v. Smith, 34 Wash. 625, 76 P. 268; Bandow v. Wolven, 21 S.D. 445, 107 N.W. 204.)

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

OPINION

AILSHIE, C. J.

This case involves the validity of a tax deed.

It appears that the land belonging to appellant's grantor was sold for taxes and the property was bid in by the county and subsequently the respondent purchased the tax certificate from the county, and at the expiration of the time allowed for redemption received a deed from the assessor and ex-officio tax collector of Canyon county. The appellants commenced their action in the district court to quiet their title to this land, and the respondent answered denying appellant's title, and set up his own title deraigned through the tax deed. After a trial the court found in favor of the defendant and the plaintiffs appealed.

A great many errors have been assigned, but, as we view the case, it is only necessary for us to consider one assignment. The tax certificate recites that the property was sold on the 8th day of July, 1907, to Canyon county for the sum of $ 18.75, and fifty cents for assessor and tax collector's certificate and that the taxes had been levied and assessed against the property for the year 1906, and that the property assessed and sold was described as "S. 1/2 N.W. 4, sec. 1, twp. 4, range 2." It will be noticed that this description does not recite the county in which the property is situated, nor does it state whether the township is north or south, nor does it show whether the range is east or west, nor does it give the meridian from which these numbers are computed. After the expiration of the three year period for redemption from this sale, the taxes not having been paid, the assessor, upon application of the owner and holder of the tax sale certificate, issued to him a tax deed. This tax deed, which, by the way, was executed by the successor in office of the assessor who executed the tax sale certificate, describes the property conveyed as follows: "The South 1/2 of the Northwest 1/4 of sec. 1 (1), twp. four (4) north, range two (2) West, Boise Meridian, Canyon county, state of Idaho." It is apparent, and must be admitted, that the description contained in the deed is a good description of the particular tract of real estate described in the deed. It is equally clear that the assessor who executed this deed could not, and did not, get this full description from the tax sale certificate which had been previously issued by his predecessor. It was necessary for him to ascertain in some other manner and from some other source that the township was north instead of south, and that the range was west instead of east, and that...