Griffith v. Anderson

125 P. 218 | Idaho | 1912

AILSHIE, J.

.This action was instituted b'y the appellant in the district court in and for Elmore county to quiet title to lots 1, 2, and 3, in block 5, town of Mountainhome. Judgment was entered for the defendant and the plaintiff appealed.

The plaintiff’s right and title grows out of a tax sale for delinquent taxes on the property for 1902. It is alleged that the taxes went delinquent for that year, and the property was subsequently sold and struck off to the county. The county received a deed to the property later and thereafter sold it to the appellant.

As we view the case, it is unnecessary for us to review or discuss the evidence at any length. There is considerable conflict in the evidence, but where there is a conflict there is sufficient evidence to support the findings of the trial court, and we shall, therefore, state briefly the salient and decisive facts found by the trial court with such incidental comment as we deem necessary in connection therewith. The court finds in substance the following facts:

That the property was assessed for the year 1902 and that during the time provided by law for the payment of taxes, the owner of the property, Anna Ellison, paid the taxes to the assessor of Elmore county. In reference to this finding, it is well enough to observe that the evidence discloses that the payment was made by the owner of the premises to the assessor when he was at her home and that he did not have his official receipt-book with him and that he gave her a written, informal receipt for the money, and that he never entered this on his books or made any record in his office of the payment of this money. About this time he became a defaulter in a large sum and was subsequently prosecuted and convicted and sentenced to a term in the penitentiary.

The court finds that this property was placed on the delinquent list for the 1902 taxes and in July, 1903, was sold at delinquent tax sale and was duly and regularly sold and and struck off to the county. Of this proceeding the owner of the property, Mrs. Ellison, apparently had no actual notice and only such constructive notice as the advertisement would give. Thereafter and in the year 1905, when she discovered that she had not been given credit for the 1902 taxes paid by her to the assessor, she transmitted her receipt evidencing the payment of her taxes for 1902 to the board of county commissioners, and demanded that she be given credit on the proper assessment-roll for the amount evidenced thereby. The board thereafter considered the. matter, and during'the same year and subsequent to the meeting of the board the deputy clerk of the board notified Mrs. Ellison that the amount evidenced by such tax receipt would be duly credited to her on the proper tax records of Elmore county, and the evidence discloses that the acting assessor some time after the meeting of the board wrote the word “redeemed” on the record of tax sale certificates in his office under the heading “Name of Redemptioner” and opposite certificate No. 56, which was the certificate issued to the county for this land. During the same year, 1905, Mrs. Ellison and her husband sold and conveyed the property to James R. Clark. Thereupon Clark called on the assessor for a statement of all taxes due, unpaid or delinquent against the property, and in reply thereto was furnished with a statement, and he thereupon paid all the taxes called for or demanded by such statement, but this statement did not include or make any mention of any delinquent taxes for 1902 or any tax sale having been made. The property was assessed from year to year after 1902 against Mrs. Ellison and her successors in interest and title, and the taxes were duly and regularly paid each succeeding year. Subsequently and prior to the issuance of the deed to the county and from the county to appellant, Clark sold and conveyed the property to the respondent Anderson, and Anderson continued to pay the taxes from year to year. The sale for delinquent taxes was made by the county and the property was struck off to the county in July, 1903, but no deed was issued to the county until 1910, and the property was never carried on the assessment-roll, as required by sec. 1755, Rev. Codes, and noted in red ink as therein provided to be done in all eases where property has been sold to the county for delinquent taxes and a certificate therefor has been issued to the county.

The provisions and application of sec. 1755, Rev. Codes, were considered by this court in Parsons v. Wrble, 21 Ida. 695, 123 Pac. 638, and it was there held in a somewhat similar case that a failure to make the red ink entry and carry the assessment on the roll, as provided by sec. 1755, was prejudicial to the substantial right of the property owner and avoided a tax sale. The trial court concluded as a matter of law that the county, having received, through its duly elected and qualified assessor, the tax money covering the assessment for 1902, was responsible for the action of its officer in this matter, and that it had no power or authority to thereafter legally sell the property for delinquent taxes for the year 1902, and that the sale was therefore void and that the county received no title to the property.

The legal conclusions reached by the court were unavoidable and inevitable. It is clear to us that the county acquired no valid title to this property. In the first place, the taxes were in fact paid and the county never had any jurisdiction to sell the property for delinquent taxes. In the second place, there was a total failure to comply with the requirements of see. 1755, and under the plain provisions of that section and the construction placed upon it by this court in Parsons v. Wrble, supra, the county was precluded from asserting any title to the property by reason of such tax sale.

Some contention has been made in this case by respondent against the right of appellant to maintain his action, on the ground of his being an attorney at law and that he had purchased this property from the county for the purpose of prosecuting an action thereon. This contention is absolutely without merit. There is nothing whatever shown in this case as having been done by appellant inconsistent with his duties and obligations as an attorney at law, and no reason is shown why he did not have the same right as any other person to purchase such title from the county as the county had in the premises.

Judgment should be affirmed, and it is so ordered. Costs awarded in favor of respondent.

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