Burns v. State

173 P. 55 | Wyo. | 1918

Lead Opinion

Beard, Justice.

In this case the defendant in error, Allen, applied to the District Court of Fremont County for a writ of mandamus to he directed to the plaintiff in error as treasurer of said county requiring and commanding him to issue and deliver to said Allen a tax deed to a certain lot in the town of Riv-erton in said county. An alternative writ was issued and served, and plaintiff in error answered, to which answer a general demurrer was interposed. The demurrer was sustained and the treasurer electing to stand upon his answer, a peremptory writ was issued and judgment rendered against him for costs. He brings error.

Briefly stated, the facts alleged in the petition are that the lot was sold at tax sale July 1, 1911, for the taxes of 1910, 'and was purchased at said sale by one Huffield, who prior to July 1, 1914, assigned the certificate of purchase to Allen. That at the expiration of the period of redemption Allen was, and ever since has been, in the actual possession and occupancy of the lot, but during none of said time could L. D. Borden, in whose name the lot was taxed in the year 1910, be, upon diligent inquiry, found in said county. That after the expiration of the period of redemption aforesaid, he (Allen) duly published notice according to law that he would on November 1, 1914, make application to the treasurer for a tax deed to said lot. That on said date he submitted to the treasurer a copy of said notice with due proof of publication and tendered the fee for a deed and demanded the same. That the treasurer wrongfully refused to issue and deliver such deed to him.

The answer admitted the allegations of the petition with the exception of the allegation that the refusal to isspe the deed was wrongful; and alleged that he rightfully refused to do so for the reason that on August 8, 1914, after the first publication of said notice, the said L. D. Borden, the owner of said lot, paid to him the full amount necessary to redeem said lot from said tax sale, which sum he received and accepted, and thereby said lot'was redeemed from said sale.

The only question in the case is whether in the circumstances the owner of the lot had the right to redeem from the sale after the expiration of three years from and after the date of the tax sale.

Prior to 1893, real estate sold for taxes could be redeemed at any time before the expiration of two years from and after the date of sale; and if not redeemed the treasurer was required immediately after the expiration of said two years to make out and deliver to the purchaser, upon the return of the certificate of purchase, a tax deed. (Secs. 3829 and 3831, Rev. Stat. 1887.). By Chapter 14, S. L. 1897, the time for redemption was extended to three years after the date of such sale. By Chapter 5, S. L. 1893, it was provided:

“Section 1. Hereafter no purchaser, or assignee of such purchaser, of any land, town or city lot, at any sale of lands, or lots, for taxes or special assessments due, either to the state, or any county or any incorporated town or city within the same, or at any sale for taxes or levies authorized by the laws of this state, shall be entitled to a deed for the lands or lots so purchased until the following conditions have been complied with, to-wit: Such purchaser, or assignee, shall serve, or cause to be served, a written or printed, or partly written and partly printed, notice of such purchase on every person in actual possession or occupancy of such land or lot, and also the person in whose name the same was taxed or-specially assessed, if upon diligent inquiry he can be found in the county, at least three months before the expiration of the time of redemption on such sale, in which notice he shall state when he purchased the land, or lot, in whose name taxed, the description of the land, or lot, he has purchased, for what year taxed or specially assessed, when the time of redemption will expire and application for deed will be made. If no person is in actual possession or occupancy of such land, or lot, and the person in whose name the same was taxed or specially assessed, upon diligent inquiry, cannot be found in the county, then such person, or his assignee, shall publish such notice in some newspaper printed in such county, and if no newspaper is printed in the county, then in the nearest newspaper that is published in this state to the county seat of the county in which such land, or lot, is situated; which notice shall be inserted three times, the first time not more than five months and the last time not less than three months before the time of redemption shall expire.”

By Chapter 19, S. L. 1897, this section was amended by adding the following: “It shall ibe the further duty of such purchaser, or his assignee, to submit to the county treasurer proper proof, in cases where personal service is made, of the fact of such service, and of the contents of the notice thus served; and in cases where service by publication is made, a sworn statement by the publisher, manager or editor of the newspaper in which such publication is made, containing the time when the same was made, shall be attached to a copy of said notice; and until such proof is so furnished to the county treasurer, he shall refuse ,to issue a deed to the said purchaser, or his assignee. Whenever said purchaser or his assignee has fulfilled all of the requirements of this act and surrenders to the county treasurer the certificate of purchase, it shall be the duty of the county treasurer to issue to said purchaser, or his assignee, a tax deed in the manner and form prescribed by law.”

By Chapter 16, S. L. 1901, this section was further amended by inserting immediately after the words “refuse to issue a deed to said purchaser or his assignee,” the following: “provided that the purchaser or his assignee may at any time within two years after the expiration of the period of redemption serve or publish the notice provided for in this section, which notice shall set a date not less than three months nor more than five months after the date of said notice, at which time the said purchaser or his assignee will make application for tax deed.” The above quoted sections of the statute are now Sections 2428, 2432 and 2433, Comp. Stat. 1910.

Prior to 1893, no notice of the expiration of the period of redemption was required by the statute and it expired at the end of the period of two (later three) years from and after the date of sale, or, if not then, certainly upon the delivery of the deed by the treasurer, which deed he was required to make out immediately upon the expiration of said tertn and deliver the same to the purchaser upon the return of the'certificate of purchase and the payment of.the fee for the deed. ' Nothing else was required to be done by the holder of the certificate to entitle him to a deed. But by the Act of 1893, no purchaser, or assignee of such purchaser, at any tax sale was thereafter entitled to a tax deed until he gave the notice prescribed in the act, which notice, if served personally, should be at least three months before the expiration of the tim.e of redemption; or if published the first publication should be not more than five months and the last not less than three months before the time of redemption would expire. The notice was required to state when the time of redemption would expire, that is, at the expiration of the two (later three) years after the date of sale, and if such notice was not given, or if the date of the expiration of the time for redemption was incorrectly stated in the notice it was invalid and did not extinguish the right of redemption and no tax deed could issue under the terms of the statute. (37 Cyc. 1403; Benefield v. Albert, 132 Ill. 665-672, 24 N. E. 634; State ex rel. Kipp v. Nord, 73 Minn. 1, 75 N. W. 760, 72 Am. St. Rep. 594; State Finance Co. v. Beck, et al., 15 N. Dak. 374-383, 109 N. W. 357.) By the amendment of 1897, it was provided that the treasurer should refuse to issue a deed until certain specified proofs of service of the notice was produced. So that under the law as it then was, in the absence of valid notice of the expiration of the period of redemption, the holder of the certificate could not obtain a tax deed. To remedy that defect in the law and to authorize him to thereafter give notice and secure such deed, the section was further amended in 1901, authorizing the purchaser or his assignee at any timé within two years after the expiration of the period oi redemption to give “the notice provided for in this section,” in which' he should set a date not less than three months nor more than five months after the date of the notice at which time he would apply for a tax deed. The notice provided in the section requires a definite statement of the time when the right to redeem will expire. It would be useless to serve notice that the time for redemption would expire at a certain date in the future if no such right existed. We are fully convinced that the purpose and intent of the lawmakers was not only to provide a way by which the holder of the certificate who had failed to give the required notice before the expiration of three years after the sale and thereby lost his right to dmand a tax deed could still within two years thereafter give notice and secure such deed, but also at the same time and by the same enactment to extend the time for redemption so that the person entitled to make redemption could redeem at any time at or before the time set in the notice. And that we deem to be the legal effect of the statute as amended.

It is contended, however, by counsel for defendant in error that no notice was required because" it is alleged that “at the time of the expiration of the period of redemption of said real estate, and ever since, the relator has been in the actual possession and occupancy of said lot, but during none of said time could L,. D. Borden, in whose name said lot was taxed in the year 1910, be, upon diligent inquiry, found in said county.” But the notice necessary to terminate the right of redemption at the expiration of three years after the date of sale must be given not less than three months prior to that date, and as there is no allegation in the petition that relator was in possession at that time, he must rely, as he does in his petition, upon the provision for obtaining a tax deed after the expiration of three years from and after the date of sale and within two years after the expiration of said"three-year period. The purpose of notice in either event is to bring to the person entitled to re-, deem knowledge that the land has been sold for taxes and within what time the same may be redeemed from such sale. If unoccupied at the time notice is given the service of notice must be personal on the person in whose name it was taxed if he can, upon diligent inquiry, be found in the county, and if not so found then by publication. If the land is occupied at that time service of notice must be made upon every person in actual possession or occupancy of such land and also upon the person in whose name the same was taxed, if upon diligent inquiry he can be found in the county. The requirement that the notice must be given to the occupant was evidently to inform the person entitled to redeem of the date at which that right would expire, and as there is no presumption that such occupancy is wrongful the statute assumes that the occupant has either the right to redeem or that he is in posession as the tenant of the owner and as such is the agent of the owner upon whom service may be made. But we know of no rule of law by which an agent who has a claim against his principal can confer jurisdiction of the person of the principal by service of notice or summons upon himself. For instance, a foreign corporation must appoint an agent in this state upon whom service can be made in suits against the corporation. If that agent brings suit against the corporation, would it be contended that he could cause summons to be served upon himself and thus give the court jurisdiction of'the corporation? We do not think so. We agree with the statement in the brief of defendant in error that “since occupant and applicant were identical, the service of notice (upon him) would have been an idle, not to say ludicrous, formality.” In Burton, et al., v. Perry, et al., 146 Ill. 71, 34 N E. 60, wherein it appeared that the purchaser at tax sale served notice upon an occupant claimed to be his own agent and acting in his own interest, the court said (146 Ill. 123, 34 N. E. 74): “The statute, by requiring notice to be served upon every person in actual possession or occupancy of the land, never contemplated that the purchaser at the tax sale should himself create an occupancy, and then hand a notice to the occupant of his own creation. Such service is not a compliance with the law. The possession or occupancy, specified in the statute, is one which is held adversely to the holder of the tax certificate.” With that construction of the statute we agree. In the case at bar, even that kind of attempted service was not made, and on the facts pleaded the lot must be regarded as vacant and unoccupied for the purposes of giving notice. Such would seem to have been the conclusion arrived at by the applicant for tax deed for •the reason that he published notice to the person to whom the land was taxed, which would not have been required if the lot had ’been occupied by one holding adversely to the holder of the certificate and the person in whose name the lot was taxed could not, upon diligent inquiry, be found in the county. We, therefore, hold that Borden had the right to redeem from the sale until the date set in the published notice at which Allen would apply for a deed; - and having paid to the treasurer the amount necessary to redeem, redemption was effected and the treasurer rightfully refused to execute and deliver a tax deed to Allen. The District Court erred in sustaining the demurrer to the answer, and for that reason the judgment is reversed and the cause remanded with directions to overrule the demurrer, and for further proceedings not inconsistent with this opinion.

Reversed.

Potter, C. J., and Blydenburgi-i, J., concur. ■

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Rehearing

ON PETITION EOR REHEARING BY ONE DESIRING TO APPEAR AS AMICUS CURIAE.

Potter, -Chief Justice.

No petition for rehearing has been filed by a party to' this cause, and the time therefor has expired. But within the time provided by the rules for filing a petition for rehearing, John J. Spriggs, an attorney of this court, has filed a petition for a rehearing of this cause and a recalling of the decision, representing by his petition that he is defendant in a cause in the District Court in Fremont County, which is being appealed to this court, in which the identical question is at issue that was determined in this cause by the opinion and judgment of this court on May 28, 1918. (See 173 Pac. 55.) And he requests that a rehearing be granted and that the court hear him as amicus curiae. The petitioner not being a party to the cause, and asking to appear only as amicus ctiriae, is not entitled to file a petition for rehearing, at least without the consent of the parties. (2 Cyc. 283; 4 C. J. 634; 2 C. J. 1325-1326; 1 R. C. L. 1054; City of Charleston v. Cadle, 167 Ill. 647; Parker v. State, 133 Ind. 178, 33 N. E. 119, 18 L. R. A. 567.) Assuming that the consent of a party to the cause might authorize the filing of the petition, no such consent is shown. And assuming that the court might grant a rehearing on its own motion, upon the suggestion of error in its decision by one in the' position of this petitioner, we would not feel justified in doing so in this cause. The question before the court in this cause was decided after mature consideration and a careful examination of the several statutory provisions involved in such consideration, and the authorities upon the subject. And nothing in this petition for a rehearing has caused us to doubt the correctness of the decision.

We held that the 1901 amendment of the statute authorizing the purchaser at a tax sale of real estate, or his as-signee, to serve or publish the required novice to entitle him to a tax deed at any time within two years aftei the expiration of the period of redemption, in effect' extended the time for redemption until the date stated in such notice: There is nothing in the statute as so construed delegating legislative power. The Legislature might have fixed the time for redemption by referring to the time of service of notice upon the owner. (Arthurs v. Smathers, 38 Pa. St. 40; 37 Cyc. 1396, 1397, and cases cited.) And by our statute providing for such notice the Legislature might properly have expressly declared that the right to redeem should continue until the date of the expiration of the time for redemption stated in the notice. Although the statute does not expressly so declare, we think it is implied, and that the statute is to be understood and construed as so providing. Such a statute should'be liberally construed in the interest of the owner. (37 Cyc. 1395; Cooley on Taxation, 2nd Ed., 532, 536; Merrill v. Dearing, 32 Minn. 479.) In the Minnesota case cited, construing a similar statute as having the effect of extending the redemption period, the court said: “By no other construction can effect be given to all the provisions of the statute, and the manifest legislative intent carried out.” It was said by the Supreme Court of North Dakota, in Darling v. Purcell, 13 N. D. 288, 100 N. W. 726, construing the statute of that state requiring a notice by the holder of a tax sale certificate: “Is the right of redemption eliminated, and does the redemption period expire, by the mere passage of the two-year period? Clearly not. Time is only one of the elements essential to terminate it. The statute expressly requires an affirmative act on the part of 'the holder of any certificate’ to effect this result, namely, the service of notice of the expiration of the redemption period. It may •be said that the redemption period is two years, and this is, in a sense, true. But it may ’be more, contingent upon delay in serving the notice of redemption. * * * * Clearly the effect of delay in giving the notice is to postpone the expiration of the redemption period.” (See also 37 Cyc. 1396.)

A rehearing upon said petition will therefore be denied.

Beard, J., and Blydenburgh, J., concur.