5 P.2d 283 | Wyo. | 1931
The taxes on the SW 1/4 of tract 97 in Sec. 8, T. 52 N., R. 96 in Big Horn County, Wyoming, were delinquent for the year 1924 and the land was struck off to the county as provided by law. On November 2, 1927, the county, pursuant to statutory authority, sold the land to Madeline Brewer, plaintiff in the case and respondent here. The purchase price was $2092.38, which included all the delinquent taxes against the land for the years 1923, 1924, 1925, 1926, and the taxes due for 1927. A deed was issued to the purchaser by the board of commissioners. Separate tax receipts were issued to the purchaser showing that she paid the taxes for the various years above mentioned. In the month of November, 1927, the tax purchaser, relying upon the validity of the tax deed, went into possession of the land, made various improvements thereon, and paid an irrigation *438 ditch assessment in the spring of 1928. On February 13, 1928, Folsom Brothers Company, a corporation, the then owner of the land, brought an action for the recovery of the property and was successful therein, as shown by judgment entered in the case on July 9th, 1928. No claim was made in that action for taxes, ditch assessment or improvements above mentioned. Thereafter — the exact time not appearing — Arnott R. Folsom became the owner of the property. The present action was commenced in December, 1928, the plaintiff asking to recover the taxes and ditch assessment paid and the value of the improvements put on the land. Issues were duly joined in the case, and judgment was entered in favor of plaintiff for the amount claimed, and for a lien against the land. From the judgment the defendants have appealed.
1. A motion to dismiss was filed herein by the respondent on the ground that the abstract of record fails to show (1) an entry of the judgment in the case and (2) any service of the notice of appeal, and (3) fails to contain any assignments of error. The appellant, realizing that he had violated the court's rule in at least one respect, thereupon asked to be permitted to add the assignments of error to the abstract, and sent them to the clerk of this court. No correction in the abstract in other respects was made. Rule 37 of this court provides that the abstract of record "shall contain a brief statement of the contents of the pleadings, the judgment, the motion for a new trial, the assignments of error relied on, and such other parts of the record as may be essential." The respondent is, by the same rule, permitted to file amendments to the abstract, and it is further provided that "in case of failure to comply with the provisions of this rule, the court may dismiss the case or tax costs as the right of the matter may require." In this state the original record comes to this court, and in this case shows no defects. The abstract of the record is furnished for the convenience of the court. We think that it should show the things essential to give this court jurisdiction. *439 But it is not necessary to apply the drastic rules applied by some of the courts when these matters are not shown thereby, but are shown by the original record. The case will not be dismissed on the grounds of the motion, but, particularly in view of the fact that the foregoing rule has not been in force long, and has not heretofore been construed, costs will be taxed to the appellants in accordance with the rule, in an amount to be fixed by the court.
2. For the sake of convenience we shall first consider the subject of recovery for the improvements made. Our statute on the subject is as follows:
§ 6240, Wyo. C.S. 1920. "Parties in an action for the recovery of real property may avail themselves, if entitled thereto, of the benefits of the statutes for the relief of occupying claimants of land."
§ 6241. "A person in the quiet possession of land or tenements, and claiming to own the same, who has obtained title to and is in possession of the same, without fraud or collusion on his part, shall not be evicted or turned out of possession by any person who sets up and proves an adverse and better title, until the occupying claimant, or his heirs, are fully paid the value of all lasting and valuable improvements made on the land by him, or by the person under whom he holds, previous to receiving actual notice by the commencement of suit on such adverse claim, whereby such eviction may be affected, unless such occupying claimant refuse to pay to the person so setting up and proving an adverse and better title, the value of the land, without improvements made thereon as aforesaid, upon demand of the successful claimant, or his heirs, as hereinafter provided, when:
1. Such occupying claimant holds * * *
4. Under a sale for taxes authorized by the laws of this state; * * *."
§ 6243: "The court rendering judgment against the occupying claimant, in any case provided for by this article, shall, at the request of either party, cause a journal entry therefor to be made," etc. (probably referring to the demand for the value of the improvements.) *440
The Code further provides for the selection of a jury to appraise the improvements made, and for the consequences of non-payment of the amount so fixed.
The statute, accordingly, makes provision for a proceeding which, while in a sense independent of the main action, yet is in connection with it and a part thereof. That necessarily follows from the fact that the judgment in the main action cannot be enforced until the claim for betterments, if made, has been settled. The proceeding for the assessment of the value of the betterments is not a separate action. The statute gives what we may call a right of retention. That right played an important part in the Roman law. It is not unknown to our own law in a number of other instances. Thus attorneys, agistors, stable keepers and others have such right; but when possession has once been relinquished the claim to any equity in the property is lost. Notwithstanding our statute, respondent seeks to recover in an independent action. Under the rules of the common law that was not permissible. In an action at law no allowance could be made for such betterments, unless mesne profits were asked, either in the action for the recovery of the land or in a separate action, and then the value of the betterments could be set off only against the mesne profits. Anderson v. Reid, 14 App. Cas. D.C. 54, 70; 31 C.J. 313-315; Sutherland on Damages, (4th Ed.) Sec. 999; Thompson on Real Property, Sec. 4890. And that appears still to be the rule in most states in the absence of a statute. In courts of equity, where plaintiff sought equitable relief, betterments made could be required to be compensated on the ground that he who seeks equity, must do equity. In 1841, however, Justice Story, in the celebrated case of Bright v. Boyd, Fed. Cas. No. 1, 875, 1 Story 478, Fed. Cas. No. 1876; and 2 Story 605, went much farther, and his holding has since been followed by several other courts, including Kentucky, though not followed by the larger number of courts. 31 C.J. 315. He held that where a holder in good faith is defeated in an action of *441 ejectment on account of invalidity of his title, he may thereafter bring an independent action in equity and recover for his betterments to the extent that the value of the land is enhanced thereby. He based his decision on what he conceived to be the principles of the civil law. Great jurist that he was, versed not only in the common law but in the civil law as well, his citations, nevertheless, from the Roman law, namely, Inst. 2, 1, 30 and 32; D. 6, 1, 38 and 65; D. 20, 1, 29, 2, are not happy, for they all deal with the right of retention against one who sought to recover the property. In exceptional cases, some of the Roman jurists gave both the right of retention as well as a right of action for useful or necessary expenditures. D. 25, 1, 5, 2; D. 5, 3, 50. But the rule was distinctly otherwise in a case like that at bar. Thus it is said in Inst. 2, 1, 30, cited by Justice Story:
"If the builder of the house has possession of the land, and the owner of the latter claims the house by real action, but refuses to pay for the materials and the workmen's wages, he can be defeated by a plea of fraud, provided the builder's possession is in good faith."
Justinian Code, 3, 32, 11, 1 and 3, 32, 16, states the law in the same way. D. 12, 6, 33 deals with building on another man's ground, and it is stated that "the only way in which he (the builder) could make sure of recouping the cost he incurred, would be by keeping the property in his hands." More specific is D. 6, 1, 48, which would seem to relate to all useful and necessary expenditures, including necessary taxes paid. It states:
"When a possessor in good faith has incurred expenses in connection with a piece of land, which is shown to belong to another, he cannot sue to recover them from the person who gave it to him or from the owner. But if he interposes the plea of fraud (in the action to recover), then upon principles of equity, he will be allowed these expenses by the judge, by virtue of his office, if they exceed the profits which he received before joinder of issues." *442
Here, clearly, only the right of retention was given, just as under our statute. Justice Story, accordingly, in Bright v. Boyd, followed neither the common law nor the Roman law. It is true, of course, that if he was to apply the latter at all, he could not follow it strictly. Under Roman law both equity and law could be administered in the same action. There was no rule that equity could not be administered in an action at law in the sense in which that rule has been applied by our common law courts. But courts of equity were distinct from courts of law in the time of Justice Story, even though presided over by the same man. That is not true to the same extent today. "The line between law and equity has been more or less obliterated in the past. * * * Courts have numberless times announced that rules of equity and of law may be applied in the same action." Holly Sugar Corporation v. Fritzler,
However that may be, we think that we must hold against respondent on another ground. Our law relating to occupying claimants, permitting them to claim compensation for improvements, was passed in 1886 (c. 60). That law was taken from Ohio, as is well known, and our adoption included, of course, the interpretation that had been placed upon the act by the Ohio courts. The Supreme Court of that state held in 1828, in Adm'r. of Winthrop v. Huntington,
3. We shall next consider the question of taxes. It is generally held that where the owner of the land sued in equity for affirmative relief, he may, as a condition for relief, be required to reimburse one who in good faith has acquired a tax title and has paid subsequent taxes on the land, on the principle that he who asks equity must do equity. Holland v. Hotchkiss,
Counsel cite 26 R.C.L. 436, which states as follows:
"It is held in some states that on general equitable principles the purchaser at a void tax sale is entitled to recover of the owner so much of the purchase price as was sufficient to pay the tax upon the property. In other states, however, it is held, that, in the absence of a special statute, the purchaser at a void tax sale has no right either at law or in equity to reimbursement from the owner of the property. But as a general rule such right is given by statute. The same result has been reached by statutes making the tax lien perpetual and only to be discharged by payment of the tax in full, and if the tax title proves invalid by reason of some defect in the proceedings the lien is transferred to the holder of the tax title defective though it may be and all the rights of the state pass to him, so that he may remedy the defect in his title by foreclosing his lien by appropriate judicial process. The remedy of the purchaser at the tax sale against the owner of the property is wholly statutory whichever method is adopted, and unless his case comes within the precise language of the statute he will be denied relief." *445
Counsel interpret the text as laying down the rule that when a perpetual lien is given the state for taxes (as in our state), the tax purchaser is subrogated to the rights of the state. Counsel have evidently misinterpreted the text. It cites Downing v. Lucy,
The respondent herein asked a personal judgment against the defendants for the taxes paid, basing her claim of recovery, however, mainly on the theory that the tax purchaser succeeds to the lien of the state or county. The rule seems to be the same whether a personal judgment is sought or whether a lien is claimed — there must be a statute authorizing either, and that we do not have. A list of states in which a statute has been passed permitting relief in one mode or another in case a tax title proves to be defective is contained in 12 Ann. Cas. 230-233.
Cooley, on Taxation (4th Ed.), the pre-eminent authority on the subject with which he deals, states in Section 1553:
"The tax purchaser buys under the rule of caveat emptor, and under common law rules would get nothing unless he got the land itself. In the absence of an express statute, if the tax title proves to be worthless, the tax purchaser cannot recover the money paid by him either against the officer, the owner of the land, or the tax district which collected and used the tax; and this is so even though the taxes were lawfully assessed and were paid by his purchase. So the purchaser cannot recover subsequent taxes *447 on the land paid by him. Furthermore, if a tax sale is void, the payment of the tax stands on the footing of a voluntary payment, not made at the request of the owner of the land, and which a court of equity will not require him to refund."
The Supreme Court of Colorado, in the case of Mitchell v. Town Co.,
"It is well settled that the maxim `caveat emptor' applies to the purchaser at a tax sale; and, if he fails to secure good title to the property he attempts to purchase because of the invalidity of the tax sale, he cannot recover the amount paid therefor unless some statute in terms provides such remedy. We have no such statute; but, on the other hand, the manner in which taxes legally levied shall be collected and the realty subjected to the payment of such tax is specifically provided by our statute. Richardson v. City of Denver,
In the case of Holland v. Hotchkiss, supra, the Supreme Court of California says:
"If the purchaser, claiming title under his tax deed, sues for possession of the land, or if, perceiving that the deed is invalid, he sues the owner to recover the tax paid, as money paid to his use, the general rule is that he cannot prevail, that the rule of caveat emptor will be strictly applied *448 against him, that a proceeding to assess and collect taxes creates no contract by the owner to pay the tax assessed, and that the law will not imply a contract by the owner to refund such tax to one who has paid the same upon a tax sale which is void, and this is true in cases where the tax was legally assessed but the proceedings to sell defective, as well as where the assessment, itself, is unauthorized and void, or where the tax has been previously paid."
In the case of Joliet Stove Works v. Kiep,
"It is urged by the appellant that said sections of the statute should not be construed so as to permit a suit to be brought to recover taxes paid by a purchaser, or one holding under him, if it appears a tax deed has issued upon the sale, as it is said the doctrine of caveat emptor is applied to a tax purchaser, and if he fails to get title to the land he should be held to get nothing, and to lose the money invested in the tax title, or to protect his interest therein. Such undoubtedly was the common law and would be the law of this state governing the case were it not for the sections of the statute above quoted. We think, however, those sections of the statute must be held to control in the decision of this case."
The authorities denying a lien, in the absence of a statute, are quite numerous. Cooley, supra, Section 1556, states:
"Unless legislation in terms give it, the purchaser will have no lien upon the land for the sum paid on the purchase nor for taxes subsequently paid by him."
In 37 Cyc. 1531, the rule is stated thus:
"A mere purchase of land at a tax sale gives no lien enforceable in equity for the reimbursement of the money paid; but where the tax title proves defective, the statutes of many states now create a lien in favor of the purchaser for the amount of the price paid, or to the extent of the taxes paid, either generally or in special cases." *449
In O'Connell v. Sanford,
"The effect of a sale of lands for taxes is to extinguish the lien if the property brings the amount of the taxes. The lien only exists in favor of the people and is discharged when the tax is paid by the sale. There is no way by which the purchaser at a tax sale can avail himself of the extinguished lien of the state when his tax title fails."
To the same effect is City of Chicago v. Collin,
"Appellant thinks that as he has paid taxes on this land, he ought to be subrogated to the rights of the state and have a lien declared for the amount of his outlay. At the time appellant paid these taxes there was no law in this state giving him a lien on the land for any such purpose. * * * There was no such relation between him and the plaintiff as would suggest the idea that he was paying the taxes at the request or for the benefit of plaintiff. The contrary appears; he was aiming to help himself only. One who, unsolicited, and with no interest of his own to protect and no obligation to do so, pays the taxes due on the lands of another is a mere volunteer and acquires thereby no right as against the owner."
So in the case of Flinn v. Parsons,
"We do not deem it necessary in this case to discuss how far the legislature may attempt to enact retrospective legislation for the purpose of creating liens in favor of a purchaser at a void tax sale which he did not have by virtue of a statutory enactment at the time of the sale. All the authorities hold that no such lien exists in favor of a purchaser except by virtue of a statute. * * * We do not doubt that it is competent for the legislature by statute to give a lien to purchasers at void tax sales for the money paid by them upon the property attempted to be sold, but we do not believe that such a lien can be created by retrospective legislation."
The Supreme Court of Minnesota has several times had occasion to refer to the question here under consideration, and it too recognizes the rule that in the absence of a statute a holder of a tax title, or tax certificate, has no lien. Barber v. Evans,
"The rights of a purchaser at a tax sale which proves to be invalid and ineffectual to pass any estate in, or legal title to, the property, are such only as are given by statute. In the absence of any statute upon the subject, he acquires no lien upon the land for the amount of the purchase-money, in case his title proves fatally defective, nor has he any legal claim upon the state for the reimbursement of his money. Neither is he entitled to be subrogated to whatever rights the state may have in respect to the collection of any taxes already legally assessed against the land, or for the re-assessment and collection of such sums as the land ought equitably to pay."
In Ross v. Mabry, 1 Lea (69 Tenn.) 226, the tax purchaser, not yet having acquired a tax title, came into court and wanted to have a lien declared for the taxes paid. The discussion is interesting, the court saying in part:
"It is difficult to see how a lien can be created by the purchase, without more. The rule of caveat emptor seems *451
to apply to tax sales. Packard v. New Limerick,
In the case of Shaw v. Morley,
We have already referred to the case of Adm'r. of Winthrop v. Huntington,
"We have been to some trouble to collect and examine the cases which permit the purchaser to recover the tax from the owner where his title fails. Some of them are cases where, on a bill to quiet title, payment of the taxes was made a condition of relief. * * * (Jenkins v. Auditor General,
In Alabama, the statute provided that the tax purchaser should have the lien of the state which it had upon the sale thereof. The court held in Sheffield City Co. v. Bank,
"For the taxes for years subsequent to 1893, voluntarily paid by complainant, as has appeared, it had, and acquired no lien. There had been no sale of the property by the State to enforce its tax lien on the property, and the defendant acquired none by way of assignment from the State. The State and county's liens were extinguished when the complainant went forward and paid the taxes for these years. It is not shown that defendant ever agreed to pay these taxes, or became in any wise obligated to do so, as surety or otherwise. The taxes assessed against the lands for the years subsequent to their sale in 1894, were assessed, or given in for taxes by the complainant for itself, and not as agent of the defendant, or by virtue of any relation between the two, and so far as defendant was concerned, as to these matters, the complainant was a mere volunteer. The payments were made, not for or on account of defendant because of any supposed interest, or on account of any lien or incumbrance on the land with which defendant had any connection. Indeed no lien existed. Foster v. Trustees,
See also Greenwood v. Adams,
This array of authorities, substantially unanimous, clearly points out what the decision herein must be. We recognize the fact that no man should be unjustly enriched at the expense of another. And every one should pay his taxes. So we had hoped that we could find a way to affirm the judgment herein. But we have been unable to do so. Equity follows the law. Holly Sugar Corporation v. Fritzler, supra. Even though we may hate to deny what we conceive to be a just claim, yet when the law is clear, as it is in this case, we cannot by our fiat annul it. Courts, while unquestionably aiding, as they should, in developing the *454 law by interpretations placed upon it as cases arise, and, as a result, frequently modifying at least what appears to be the law, are not the makers thereof. They cannot usurp the functions of the legislature, a coordinate branch of the government. Mere matters of procedure stand upon somewhat different footing. Matters relating to taxation, to taxes, and to tax titles, however, are particularly within the special province of the legislature, and since it has heretofore refused to follow the example of a number of other states in granting relief in cases like that before us, there is but one result possible in this case, and that is that the respondent cannot recover herein. We need not separately discuss the question of the ditch assessment paid, since that is governed by the principles already discussed.
The judgment of the trial court is accordingly reversed, and the cause remanded with directions to dismiss the petition.
Reversed and Remanded.
KIMBALL, Ch. J., and RINER, J., concur.
