Wilson v. Locke

• Decision Date: 04 October 1910
• Citation: 111 P. 247,18 Idaho 582
• Parties: ELIZA A. WILSON, Appellant, v. W. F. LOCKE, Respondent
• Court: Idaho Supreme Court

111 P. 247

18 Idaho 582

ELIZA A. WILSON, Appellant, v. W. F. LOCKE, Respondent

Supreme Court of Idaho

October 4, 1910

ACTION TO QUIET TITLE-TAX LEVY-DELINQUENT TAX-SALE OF PROPERTY-SMALLEST SUBDIVISION-TAX DEED-RECITALS IN-CONCLUSIVE EVIDENCE-PRIMA FACIE EVIDENCE-CONSTITUTIONAL LAW.

(Syllabus by the court.)

1. A recitation in a tax deed as follows: "That the said least quantity or smallest portion of interest in said land lying and being within said Ada county, as hereinafter described.... was by the said H. E. Neal, as treasurer of said Independent School District of Boise City, sold and struck off to said W. F. Locke who paid the full amount of said taxes, costs and charges," held sufficient to make a prima facie case on the question that that was the least quantity or smallest portion of the property sold that the purchaser would take and pay taxes and costs.

2. It is not within the power of the legislature to declare that a tax deed is conclusive evidence of a compliance with all of the requirements that are essential to the exercise of the taxing power, and thus deny the right to defend title against a tax deed as to all jurisdictional questions.

3. That provision of section 177 of the Special and Local Laws of Idaho, p. 40, to wit, that "Any deed derived from the sale of real property under this act shall be conclusive evidence of title except as against actual frauds or prepayment of taxes upon which such sale was made," etc., in so far as it would deny the right to defend title against a tax deed, held unconstitutional, as it would result in the confiscation of property without due process of law.

4. Under the provisions of sec. 1765, Rev. Codes, a tax deed duly acknowledged and proved is prima facie evidence of the regularity of all of the proceedings therein from the assessment up to the execution of the tax deed. The provisions of that section shift the burden of proof.

5. Where it is made the duty of the treasurer of the school district to make the sale of land for delinquent school taxes, it is sufficient if the clerk of the school board attends and makes the sale at the instance and request of the treasurer.

6. The record fails to show that the trial court rejected any evidence offered to show that any of the jurisdictional requirements of the law in this matter had not been complied with.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

Action to quiet title. Judgment for defendant. Affirmed.

Judgment affirmed.

E. J Frawley, and G. G. Adams, for Appellant.

A statute which undertakes to make a tax deed conclusive evidence of a complete title, and to preclude the owner of the original title from showing the invalidity of such deed is not a law merely regulating evidence; it is unconstitutional confiscation of property. (Cooley on Taxation, 2d ed., 298, 521; Cooley, Const. Lim., 4th ed 459; Blackwell, Tax Titles, 4th ed., 83; Black, Tax Titles, sec. 253; 27 Am. & Eng. Ency. of Law, 979, and authorities cited; Joslyn v. Rockwell, 128 N.Y. 334, 28 N.E. 604; Roberts v. First Nat. Bank, 8 N.D. 504, 79 N.W. 1049; Gardner v. Early, 69 Ia. 42, 28 N.W. 427; Allen v. Armstrong, 16 Ia. 508; Corbin v. Hill, 21 Ia. 70; Dawson v. Peter, 119 Mich. 274, 77 N.W. 998; Taylor v. Deveaux, 100 Mich. 581, 59 N.W. 250; Marx v. Hanthorn, 12 Saw. 365, 30 F. 579, 148 U.S. 172, 13 S.Ct. 508, 37 L.Ed. 410.)

If the entire land is sold, the deed should show that this became necessary. (Brookings v. Woodin, 74 Me. 222.)

A sale of an entire parcel of land is invalid where there was an omission of the record to show that a sale of the whole "was required to pay the tax, interest and charge," or that the treasurer first offered for sale a fractional part as required by the statute. (French v. Patterson, 61 Me. 203; Straw v. Poor, 74 Me. 53; Polk v. Rose, 25 Md. 153, 89 Am. Dec. 773; Martin v. Cole, 38 Ia. 141; Norres v. Hays, 44 La.Ann. 907, 11 So. 462; Tucker v. Whittlesey, 74 Wis. 74, 41 N.W. 535, 42 N.W. 101; Walker v. Moore, 2 Dill. (U.S.) 256, F. Cas. No. 17,080; Montgomery v. Birge, 31 Ark. 491.)

A sale by any other than the officer designated for that purpose, or his deputy, is unauthorized and void. (27 Am. & Eng. Ency. of Law, 831; Hull v. Greeley, 31 Fla. 471, 12 So. 469; Hall v. Collins, 117 Mich. 617, 76 N.W. 72; Loose v. Navarre, 95 Mich. 603, 55 N.W. 435.)

D. D. Williams, and John J. McCue, for Respondent.

A landholder cannot, after he has allowed his property to be sold for taxes and the purchaser has acquired title by tax deed, overturn the plain provisions of the tax law through a technicality. (Quivey v. Lawrence, 1 Idaho 313; Co-operative etc. Assn. v. Green, 5 Idaho 660, 51 P. 770; Bacon v. Rice, 14 Idaho 107, 93 P. 511; Gwynne v. Neiswanger, 18 Ohio 400; Steeple v. Downing, 60 Ind. 478; Callanan v. Hurley, 93 U.S. 387, 23 L.Ed. 931; De Treville v. Smalls, 98 U.S. 521, 25 L.Ed. 174; Griffin v. Dogan, 48 Miss. 11; Rollins v. Wright, 93 Cal. 395, 29 P. 58; Steadman v. Bank, 7 Ark. 424.)

Many courts of last resort have held that if a law similar to the law under consideration here is not sufficient to make the deed conclusive evidence of title, it is valid, but have decided that such law could not preclude the party claiming adversely to the deed from proving the absence of some jurisdictional fact that would make the deed invalid, such as showing that the land was not subject to taxation, or that the land had been redeemed after the sale where the party has been deprived of some substantial right, and have thrown the burden of proving those facts upon the party seeking to impeach the sale. (Martin v. Barbour, 140 U.S. 634, 11 S.Ct. 944, 35 L.Ed. 546; Bronson v. Lumber Co., 44 Minn. 348, 46 N.W. 570; Lufkin v. Galveston, 73 Tex. 340, 11 S.W. 340; Milledge v. Coleman, 47 Wis. 184, 2 N.W. 77; Coleman v. Lumber Co., 30 F. 317; Marsh v. Park Assn. , 25 A.D. 34, 49 N.Y.S. 384; Wood v. Knapp, 100 N.Y. 109, 2 N.E. 632; Brown v. Allen, 57 Hun, 219, 10 N.Y.S. 714.)

The deed recites specifically that W. F. Locke was the bidder who was willing to take the smallest portion of the interest in said lots and pay the taxes, cost and charges thereof, etc., and also recites that the said least quantity was the whole of the lots. This satisfied the law that the treasurer shall only sell the smallest quantity, etc. (Rollins v. Woodman, 117 Cal. 516, 49 P. 455; Doland v. Mooney, 79 Cal. 137, 21 P. 436; Hewes v. McLellan, 80 Cal. 393, 22 P. 287.)

SULLIVAN, C. J. Ailshie, J., concurs.

OPINION

SULLIVAN, C. J.

This is an action to quiet title to lots 8, 9, 10, 11 and 12 in block 5 of Ireland's addition to Boise City. Said lots were sold by the clerk of the Independent School District under and by virtue of an alleged delinquency and failure to pay school taxes, and penalty, in the sum of $ 4.15. The complaint is in the usual form of complaints to quiet title, and prays that the defendant be required to set forth the nature of his claim and that plaintiff be decreed to be the owner of said lots. To this complaint the defendant answered, denying the ownership or the possession of the plaintiff or that she was entitled to the possession of said lots; admitted that plaintiff claimed an estate and interest in said premises, and the whole thereof, adverse to plaintiff; and also, by way of cross-complaint, asked to have the title to said lots quieted in the defendant.

Upon the issues thus made, trial was had and judgment entered in favor of the defendant. A motion for a new trial was denied, and this appeal is from the judgment and order denying a new trial.

The respondent's title to said lots is founded upon a school tax deed given by the treasurer of the Independent School District of Boise City. During the trial the plaintiff introduced in evidence abstracts of title to said lots and other documents and rested. The defendant thereupon offered in evidence the treasurer's certificate of sale of said real estate to respondent for delinquent school taxes for 1905, also the tax deed of the treasurer of said school district to the respondent. Several objections were made to the introduction of each of said instruments and some of them were as follows: For the reason that the preliminary steps preceding the issuance of said tax deed have not been shown, either as notice, return or report of officer, nor any of the steps required in order to obtain a tax deed under the laws of said Independent School District or under the laws of the state of Idaho, and for the further reason that there is no provision in the school laws creating said school district making the tax deed prima facie evidence as to the recitals therein contained; and for the further reason that there is no provision of law whatever that would warrant the introduction of the deed offered in evidence in any event unless the different successive steps required by law to be taken in such matter were first shown to have been taken; and for the further reason that the provisions relative to making such tax deed conclusive evidence of the fact that all the steps required by law in said matter had been taken are void.

The questions presented go to the sufficiency of the proceedings had in the assessment and sale of said lots, the recitals in said deed and to that part of the school law of Boise City (Special and Local Laws of Idaho, sec. 177, p. 40), which provides that "Any deed derived from a sale of real property under this act shall be conclusive evidence of title, except as against actual frauds or prepayment of the taxes upon which such sale was made and shall entitle the holder thereof to a writ from the district court to obtain possession of such property."

It is first contended that it does not...