277 P. 1114 | Idaho | 1929
This is an action to recover the sum paid for void delinquency (tax) certificates. Prior to 1914, several thousand acres of land in Twin Falls County were set aside for the purpose of reclamation under what is generally known as the Carey Act. As disclosed in Lency v. Twin Falls County,
It is the position of the county that the cause of action on appellant's claim against the county commenced to run when he purchased the delinquency certificates, or, in any event, as determined by the trial court, not later than December, 1921, when the first petition was filed. Appellant, however, contends that the statute did not commence to run until February 17, 1926, when the board canceled and set aside the taxes on account of which the delinquency certificates were issued.
Chapter 58, 1913 Session Laws, was in force when the delinquency certificates were issued. Section 121 thereof sets forth the form of a delinquency certificate, and each of the certificates held by plaintiff contained a provision "that if, on account of any irregularities of the taxing officers, this certificate be void," the board of county commissioners "will" repay to the owner the sum paid for the certificate, with interest. Section 206, of chapter 58, set up the board of county commissioners as a special tribunal, with jurisdiction to determine if any delinquency certificate was void, on account of any irregularity of the taxing officers. If they determined that a certificate was void, the statute made it their duty to make repayment. (Hayes v. Los Angeles County,
In the case of Easton v. Sorenson,
"The plaintiff's right to have his money returned was complete when the judgment was entered against him, and whether he received it promptly was a matter entirely within his control. His cause of action then accrued, although his right to maintain a suit upon this cause depended upon his taking certain preliminary steps, clearly requisite for the information of the officers and the protection of the county. . . . . The statute of limitations commenced to run against plaintiff's claim upon the county on the day judgment was entered against him."
In the case of Sherwood v. Barnes County,
"We conclude . . . . that action by the board of county commissioners was a prerequisite to the issuance of a warrant by the county auditor in favor of respondent. Until the action of such board, the fund would lie in the county treasury subject only to a demand on the part of respondent; and the only officials who could act upon such demand *532 were the county commissioners as a board. . . . . The county commissioners rejected respondent's claim. Until such rejection he had no ground for action. It therefore appears to us that the cause of action arose on the rejection of his demand. . . . . And, where a claim against a county must be presented for allowance before suit, the statute of limitations does not run against such claim until its presentation and rejection by the body or board to which it is necessary to present the claim."
In Lawrence v. Doolan,
"As to the statute of limitations, we think it very clear that the plaintiff had no right to bring an action for her money until it was judicially determined whether or not she was the person to whom the city would deed the land, and might take the money she had paid in to the tax collector, and apply it to the purpose contemplated by order No. 800, and the acts of the legislature, supra. When, in February, 1878, it was thus determined that she had no right to demand of the city a deed to the lands in controversy between her and Ballou, she could then have demanded her money, and her right of action accrued. The present action was commenced January 14, 1880, and was not barred by the statute of limitations."
In Merriam v. County of Otoe,
"It is assumed in the brief of plaintiff in error that the demurrer was sustained on the ground that the claim of the plaintiff was barred by the statute of limitations; and that, to reach that conclusion, the court held that the plaintiff's cause of action accrued immediately upon his purchase of the land. If that was the ground of the decision it cannot be sustained. In the case of Peet v. O'Brien,
In the case of Real v. Kern County,
"No order for the refund of taxes, penalties or costs under this section shall be made except upon a verified claim, . . . . which, . . . . must be filed within three years after the making of the payment sought to be refunded."
Subdivision 5 of sec. 3898 of the Cal. Pol. Code, provides:
"Whenever in any action at law, it has been or shall be determined by a court that the sale and conveyance provided for in this and the preceding section . . . . are void for any reason, and that the purchaser from the state may not be finally awarded the property so purchased. . . . . The said purchaser may within one year after such decree becomes final also present a claim against the county, in the manner provided by law, for a refund of the amount paid into the county treasury as the purchase price of such property in excess of the amount for which he may have been reimbursed for taxes, penalties and costs as herein provided, and such excess shall be refunded in accordance with section 3804 of this code."
In considering these two sections and the effect of the provisions of sec. 3898 upon sec. 3804, and in reaching its decision in the above case, the California court said:
"Hence, assuming that the words 'refunded in accordance with section 3804,' found in section 3898, are to be construed as incorporating therein the provision in the latter section to the effect that the verified claim, in order to be effective, must be filed within three years after making the *534 payment, we are constrained to hold that such limitation as to time does not begin to run until the court has determined that the purchaser is not entitled to an award of the property purporting to be conveyed by a void tax deed."
Since the law required a determination that delinquency certificates were void to give rise to a claim against the county, Real v. Kern County supports our conclusion. See, also,Chicago County v. Kipp,
The conclusion that the board of county commissioners, in its order of February 17, 1926, "referred only to delinquency certificates then owned by the county, and did not refer to plaintiff's certificates, or in any way confer any additional rights upon him," is not sustained by the record of the proceeding of the board. The board ordered that "all taxes and charges," on certain described lands, "be and the same are cancelled, and annulled, avoided and set aside." The lands described in appellant's delinquency certificates are included in the description of the lands declared to have been illegally taxed, and it would be unreasonable to conclude that appellant's certificates were not affected by that order. From the declaration of the board that the taxes, on account of the nonpayment of which, appellant's certificates were issued, were void, it followed that the certificates, based on such void levy, were also void.
Respondent's argument that these delinquency certificates were not void "on account of any irregularity of the taxing officers" is not well taken. The levy of taxes on lands exempt from taxation is an irregularity that renders delinquency certificates based thereon void. (Knapp v. Douglas County,
The costs expended by appellant in foreclosing his delinquency certificates cannot be recovered. The right to any recovery is based entirely on the provisions of the statutes hereinbefore referred to, and the obligation of the county is therein limited to a refund of the amount paid for the certificates, together with interest. (Creason v. DouglasCounty,
The judgment is reversed and the cause is remanded with instructions to make and enter judgment in favor of appellant, and against the county in accordance with the views herein expressed.
Budge, C.J., and Givens and Varian, JJ., concur.