126 P. 776 | Idaho | 1912
Lead Opinion
:This action was commenced by the plaintiff Booth to quiet title to lots 1 to 10, inclusive, in block 13, South Boise First Subdivision, and lots 1, 2, 3 and 4, in block 37, and lots 25 to 32, inclusive, in block 40, Londoner’s First Subdivision, as said lots are described in the respective plats filed in the recorder’s office of Ada county. The defendant Cooper answered and claimed title to all of said lots under tax deeds acquired by reason of the nonpayment of delinquent taxes assessed against said lots.
The cause was tried by the court and findings were made quieting the title in the plaintiff Booth to said lots 1 to 10, inclusive, in block 13, South Boise First Subdivision, and quieting the title in the defendant Cooper to said lots above described in blocks 37 and 40, Londoner’s First Subdivision. The plaintiff Booth appeals from that part of the decree quieting the title to said lots in blocks 37 and 40, London
The appeals are from the judgment on the judgment-roll alone. No part of the evidence is contained in the record. The facts are to be taken as found in the findings of the ■trial court.
(1) It appears from said findings that said lots 1 to 10, inclusive, block 13, were assessed in 1893, to Henry "Wymer as owner, as being in South Boise in Ada county. Said taxes were not paid and the lots were sold for that year’s taxes under the description given them on the assessment-roll as above stated. A tax certificate was issued therefor to C. W, Cooper and a tax deed thereafter executed by the assessor and tax collector to Cooper, describing the lots as above indicated. The court found that there was no South Boise in Ada county at the time said assessment was made, but that there was land subdivided and described upon a plat filed in said recorder’s office as “South Boise,” but said plat did not contain any block numbered 13; that there was filed in the recorder’s office of Ada county a platted tract of land marked on the plat as ‘ ‘ South Boise First Subdivision,” and that such plat did not include any part of South Boise as platted and subdivided as “South Boise,” and upon the findings made in regard to said lots numbered from 1 to 10, inclusive, in said block 13, the court found as a conclusion of law that Booth was entitled to a judgment and decree quieting title in himself as against Cooper to said lots in block 13 in “South Boise First Subdivision,” and that conclusion and decree were based upon the proposition that said assessment of said lots was indefinite and uncertain, and for that reason was not a sufficient description of said lots to convey any title thereto under said tax deed.
It appears that there were at least three plats filed of lands that had been platted in what is now known as South Boise. One plat was named “South Boise” and contained certain lands subdivided. That plat did not contain a block
Said lots from 1 to 10, inclusive, in said block 13, were in “South Boise First Subdivision” and not in a part of the land platted as “South Boise”; hence as said lots were not in the “South Boise” tract, but were assessed as being a part of that tract, the description is clearly insufficient to describe said land either for taxing purposes or for conveying any title thereto by such description. It is as clearly defective and incorrect as it would be to describe a forty-acre tract of land as being in section 10 when in fact it was in section 5. Said lots being assessed under such a defective description, the taxes so assessed became no lien upon said lots. That description is not sufficient to identify said lots and land and the assessment is therefore void. Had a person gone to the recorder’s office of said county and called for the plat of South Boise, on an examination thereof he would have ascertained that it contained no block No. 13. The court, therefore, did not err in quieting title to said lots in the plaintiff Booth.
It is suggested that the payment of taxes for several years subsequent to a tax sale may validate a wrong or invalid description of property on the tax-roll. We cannot agree with that contention, as it is clear to us that subsequent payments of taxes on land that is not correctly described on the tax-roll cannot correct or in any way validate such wrong description. If the description given on the tax-roll is not sufficient to convey the title to the land, the description cannot .be corrected by payment of subsequent assessments.
(2) The court found that the defendant Cooper was the owner of said lots 1 to 4, inclusive, in said block 37, and lots 25 to 32, inclusive, in said block 40, in Londoner’s First Subdivision; that said lots in Londoner’s First Subdivision
We therefore conclude that the judgment and decree of the lower court must be affirmed, and it is so ordered, each party to pay one-half of the costs of this appeal.
Dissenting Opinion
Dissenting. — I am unable to agree with the majority opinion in their discussion of the questions involved in this case, and the conclusion reached as to the sufficiency of the descriptions of the respective properties assessed and involved, and the legal effect of such descriptions. The facts may be conceded as stated in the majority opinion, but the law governing such facts seems to have been entirely overlooked in that opinion, and no consideration whatever given to the matter other than the general conclusion stated in the opinion, and to state my position clearly I desire to call attention to the various provisions of the law and the general rule of law governing cases of this kind.
Sec. 1682, Rev. Codes, requires the assessor to exact from each person a statement under oath setting forth specifically all the real property owned by each person within the county where such property is located on the day of assessment, and such statement is required to be in writing, showing specifically (1) all property belonging to, claimed by, or in possession of, each person; (4) the county, town, city, etc., in which such property is situated or in which it is liable to taxation; (5) an exact description of all lands in parcels.
The foregoing statement is required to be exacted by the assessor, and is presumed to be made by each person owning property or having property under his control, and is to be in writing, and when the assessor of Ada county made his assessment for the year 1893, it will be assumed by this court, in the absence of any showing to the contrary, that such statement was required by the assessor and that the owners of the property in controversy in this case, to wit, Wymer and Milner, presented to the assessor lists of the property owned by each and gave a proper and correct description of the same. Whether this statement in fact was made does not determine, however, the validity of the assessment, for it is further provided by sec. 1688, Rev. Codes: “If any person, after demand made by the assessor, neglects or refuses to give, under oath, the statement therein provided for, or to comply with the other requirements of this chapter, the assessor must note the refusal on the assessment-
The discrepancy between the description of the property assessed and placed upon the assessment-roll and the true description may have arisen by reason of a wrong description placed in the statement made by the owners to the assessor in 1893, if such statement was in fact made; or if such statement was not made, it may have arisen by the assessor applying to such property a common name rather than the true description as disclosed by the maps and plats on file.
Conceding, then, that Wymer and Milner were the owners of the property in controversy, and that the title fo such property passed to them by true descriptions as disclosed by such maps and plats, they were advised that under the laws of this state such property wms subject to assessment the same as all other property in the state, and it was their duty to report such property to the assessor for assessment; and they were also aware of the provisions of the law, that if such property was not reported and listed for assessment, the assessor had power to place the same upon the assessment-roll. Being such owners, if inquiry had been made at the assessor’s office, the assessor’s book would have shown that they were assessed with real property, and that in such assessment it was misdescribed.
The assessor in placing such property upon the tax-roll no doubt had in mind the land owned by Wymer and Milner, and attempted to describe such property. Wymer and Mil-
These different tracts of land were apparently surveyed and maps and plats were made and recorded in Ada county, and no other survey was shown and no other plats were of record to which these names could by any possible theory
This court, in a long line of decisions, has announced the doctrine in this state governing the assessment and sale of property for taxes as follows: “Where property is subject to taxation, a substantial compliance with the requirements of the law in making assessments of taxes and in the procedure under the statute leading up to the issuing of a tax deed is all that is required, and the mere failure of officials to perform the duty required of them by law cannot be taken advantage of by a property owner for the sole purpose of escaping such taxation; there must be prejudice and injury to such owner.” The decisions of this court are collated and cited in the case of Armstrong v. Jarron, 21 Ida. 747, 125 Pac. 170.
In the same case the decisions of this court are also cited with many others, and the general rule stated to be: “But where omissions and errors have been made in assessments and sales of property for delinquent taxes, and such questions are not jurisdictional and are mere legislative directions in such proceedings, and by such omissions and errors the property owner is prejudiced, then such facts may be shown to defeat the tax title.” And in the latter case the court approves the rule announced by this court in Parsons v. Wrble, 21 Ida. 695, 123 Pac. 638: “If he allows his property to go for four continuous years without paying any taxes on it and fails to call on the tax collector during the three years of redemption, it would seem that the failure to make the red ink entry of the assessment would in no way prejudice him or affect his substantial rights in the least.”
So in the case at bar, Wymer and Milner were the owners of the property in controversy in the year 1893, and as such owners knew that such property was assessable. How long such property remained the property of Wymer and Milner
The general rule governing descriptions of real property upon tax-rolls for assessment purposes is, to my mind, clearly stated in 27 Am. & Eng. Ency. of Law, p. 684: “It is not absolutely necessary that each description be complete in itself. It will suffice if it can be made certain by recourse to records, maps, plats or other available documents, incorporated into it by reference to general descriptive matter at the head of the column in which it appears, or elsewhere in the assessment-roll, or to other descriptions with which it is grouped.” The description may be explained and applied by parol evidence, and while such evidence should not be received to supply a description wholly insufficient, yet such evidence may be received and should be considered in determining whether the description used is sufficient to identify the property, and this general principle seems to be well recognized by the decisions that have been given by this court in tax title eases.
Examining the entire record in this case, I am unable to see any facts or equity in favor of the appellant Booth. I am clearly of the opinion that the description of the land in the assessment-roll and in the tax certificate and tax deed has clearly afforded the means of identification intended by the statutes of this state.
