3 Nev. 341 | Nev. | 1867
Lead Opinion
concurring,
concurring specially.
This was a proceeding under the provisions of an Act approved January 31st, 1866, “ prescribing rules and regulations for the execution of the trust arising under the Act of Congress, entitled i An Act for the relief of citizens of towns upon lands of the United States under certain circumstances,’ approved May 24th, 1844.”
Each party filed a claim for the same piece of property, and demanded a deed therefor from the District Judge of the Second Judicial District. The case came on for trial before the District Court of the Second Judicial District, Ormsby County, the lion. C. N. Harris, Judge of the Third Judicial District, presiding.
When the appellant undertook to prove his case, he first introduced the delinquent list of Ormsby County, and offered in evidence the following portion thereof:
The other claimant, John Cradlebaugh, objected to this evidence on the following grounds :
1. “ That it appeared from said assessment that separate, several and distinct lots or parcels of land were assessed together and not separately valued.
2. “ That from said assessment and valuation it appeared that the absolute or Government title to said land was assessed for taxation, and not the ‘ possessory claim.’ ”
The Court sustained this objection and Wright excepted. It is proper to remark that, in connection with .the offer of this part of
The Court, after argument, rejected the delinquent assessment list, or the extract therefrom, and of this the appellant complains in this Court.
Whether, under our statute, it is necessary to introduce the delinquent assessment list and the judgment rendered for delinquent taxes, as a preliminary to the introduction of a tax deed, it is not perhaps necessary in this case to decide. But assuming that they must be so introduced, let us examine the objections to the introduction of this delinquent list.
In the first place, it is admitted by the petitions of each of the parties filed in this case, that the land in controversy was United States Government land up to the seventh day of September, 1866, and as such it was absolutely free from all State taxation, and any proceeding taken on the part of the State Government to subject it to taxation must be held utterly void. But the Government has adopted the policy of throwing open her lands to settlement and occupation by her citizens generally, and has recognized the right of all such settlers to purchase the Government title under prescribed rules. Now although the Government title may be free from taxation, it by no means follows that the possessory right of the occupant is also free. Indeed, it has been repeatedly held in this and neighboring States that such possessory rights are subject to taxation. (See Sale & Norcross Gold and Silver Mining Co. v. Storey County, 1 Nevada, 104.)
In some cases the Government policy has been to discourage and prohibit transfers of possessory claims, and always to grant the land to the original occupants regardless of any forced sales of the occupants’ rights. But we are not prepared to say such has been the policy of the Government in regard to town site property. Possibly a tax sale of the possessory right of a party to a town lot, and a deed regularly made under such sale, might confer on the purchaser the right of possession, and entitle him to • a deed from the
It would certainly always be safe for the Assessor in assessing possessory claims to describe them as such in the second column of the tabular form prescribed by statute.
We think for the foregoing reasons the Court did not err in rejecting this testimony.
It may not be out of place to notice some other objections raised to this delinquent list. It appears that one lot and a fraction were assessed in one common assessment, and a joint valuation made of both. The whole lot is only described by its number and block, the fraction as so many feet of the east side of another lot.
Two. objections are raised to this mode of assessment. 1 First, the lot and fraction should not have been assessed jointly. Second, these lots not being in a city or incorporated town should have the boundary described, and the number of acres or fractions of an acre should have been mentioned. The requirements of the statute
We see nothing in this which in direct language prohibits the joint assessment of two contiguous lots to the same person. We see no possible objection to such assessment. If both lots belong to the same party, he is bound to the State for the entire tax, and has no right to complain that he cannot pay the tax on one without paying the tax on both. If the same party owns both lots, any property of which he may be possessed, real or personal, is bound for the whole tax. He cannot be injured by the failure to make a separate assessment. If two lots are assessed jointly, and one belongs to A and the other to B, we can see that a difficulty might arise about the payment of taxes. A might wish to pay on his, but not on B’s lot. They might not necessarily be of the same value, and the receiver of taxes would have no right to assess the value of each. But the very same difficulty would arise if a single lot were assessed to'A and half of the lot belonged to B. The two halves would not necessarily be of the same value. The receiver of taxes has no right to establish the value or amount of taxes on any piece of property. The law seems to have made no provision for a case of this kind. If A were sued for the' entire tax on a lot, and should set up in defense that he only owned one half of the lot, a question might arise whether the Court could apportion the tax and give judgment for his equitable portion, or whether it would be a good defense to the entire action. But it is surely true that the defense would be just as available in a case where A owned only one half of a lot, as in a case where two contiguous lots were taxed to him and he only owned one of them.
We’ are aware that in coming to the conclusion that two lots may be lawfully assessed in one joint assessment, wTe are disregarding and overruling some respectable authorities. (See Terrill v. Grove, 18 Cal. 151; and Shimmin v. Inman, 26 Maine, 228.) But both these authorities go on the ground of the great inconvenience that
We apprehend it is beyond the power of the Legislature to restrain a defendant in any suit from setting up a good defense to an action against him. The Legislature could not directly take the property of A to pay the taxes of B. Neither can it indirectly do so by depriving A of setting up in his answer that his separate property has been jointly assessed with that of B, and asserting his right to pay his own taxes without being incumbered with those of B.
Section 8 of the first Article of the Constitution declares that “ No person shall * * * nor be deprived of life, liberty or property without due process of law.”
“ Due process of law” not only requires that a party shall be properly brought into Court, but that he shall have the opportunity when in Court to establish any fact which, according to the usages of the common law or the provisions of the Constitution, -would be a protection to himself or property. The Legislature may regulate the mode of pleading and conducting a trial, but under pretense of doing so it cannot deprive parties of substantial rights. (See Taylor v. Porter & Ford, 4 Hill, 140.)
With regard to the other objection, that the boundaries or number of acres is not given, we think there is nothing in that, for several reasons. In the first place, we think Carson is a city. It may not be incorporated, but that we think does not prevent its being a city. On all the maps of the country it is marked as a city; it is generally known as a city; it is called a city in that
The tax deed was afterwards offered in evidence by Wright, and objected to on the same grounds as the delinquent assessment list, and also, among other grounds, that “ no evidence was offered in the case showing or tending to show that the lot and fraction of lot in question, or either of them, was claimed or occujúed by any person at the time of the assessment or valuation thereof, or of the levy of the tax under which the sale mentioned in said deed purports to have been made ; nor that John C. Lewis, in said assessment and deed mentioned, ever had any title or claim to said real estate, or any portion thereof.” The deed itself recites that the land or property therein described (not a mere possessory right thereto) was sold for taxes, and purports to grant a title thereto. There is no proof or offer to prove that any person ever had a possessory right thereto at or before the time of the levy of the tax. Both parties admit that at that very time the title was in the Government. Under all these circumstances, we think the Court below was right in holding that the deed proved nothing for Wright, and in rejecting it.
It is claimed by appellant that the deed itself was at least good testimony as far as it went; that he should have been allowed to introduce his evidence in whatever order he chose; that he might subsequently have shown that Lewis did have a possessory right and
It is true that a party may usually choose for himself as to the order in which he will introduce his testimony. But if counsel offers a paper in evidence which may or may not be pertinent to the issue, depending for its relevancy upon its being in some way connected with something else, the Court may well ask the counsel if he expects to make the connection which would make it relevant testimony.
If counsel answers in the affirmative, it would usually be proper to admit the writing, though there are some cases where the Court might with propriety require the connecting proof to be first made. But if the affirmative answer is not made, then the Court should reject the paper, for the time being at least.
Here the opposing counsel called attention to the total absence of all that proof which would be required to make the deed relevant to the issues in the case. There Avas no suggestion by the appellant (so far as the record sIioavs) that such proof would be offered, and no subsequent attempt to introduce such connecting evidence. Under such circumstances it Avas not improper in the Court below to reject the deed.
Even had this evidence been offered, Ave do not see that it would have helped the appellant. There was still the stubborn fact apparent on the face of the deed that the land itself was taxed, and the deed purported to convey a fee simple title to this land. The appellant only claims the benefit of this proceeding on the hypothesis that it Avas United States land when the tax was assessed. If so, we think that a deed based upon a supposed taxation and sale of that which Avas neither subject to taxation nor sale by State authority must have been held void, whatever other proof may have been connected thereAvith. That clause of the Revenue Law which declares that a tax deed shall be “ conclusive evidence of the title,” except against frauds, etc., is certainly very sweeping, and no doubt was intended to cut off many defenses that it was anticipated might be made against those claiming under tax deeds. Whatever was the intention of the Legislature, there are certainly some defenses they could not cut off. If the Government lands cannot be taxed by the
The judgment of the Court below must be affirmed.
Opinion by
The facts of this case and points submitted for our determination are fully stated in the foregoing opinion, and whilst I concur with my associates in the judgment they award, it will be seen that in some respects we differ as to the reasons therefor. The case arising in the District Court under the town site laws of this State, was brought into this Court not strictly in compliance with the acts governing appeals in such special proceedings, but at the instance of counsel representing each party, the appeal was permitted to be heard on an incomplete record, the bill of exceptions alone ; so that the only questions reserved for our decision are as to the rulings of the Court below in rejecting the delinquent assessment roll and tax deed as evidenee on behalf of plaintiff. This brings us directly to consider material and important features of the Revenue Laws of the State, and in doing this, two prominent objects should not be lost sight of. These are: First, to preserve unimpaired the compact under which this State was admitted into the Union, wherein it was stipulated “ that no taxes shall be imposed on lands or property therein belonging to the United States;” and second, to render effective, so far as consistent and proper, the tax laws of the State.
Our revenue laws in no respect contemplate the taxation of the Government title to the public domain, but on the contrary have expressly forbidden it. Yet the right to impose a tax on the possession of individual claimants to such lands is equally as distinctly asserted by these laws — a right so universally upheld by judicial authority at the present day as to have become an established and recognized principle of law. Observing the same order that these questions are discussed in the foregoing opinion, I will first consider the objection stated to the assessment roll, that “ it appeared an absolute or Government title to such land as was assessed for
But it is insisted that this is defective as an assessment of a mere possessory claim or right, because nowhere within the descriptive features of the assessment roll is it by express words limited to the assessment of a possessory right or claim. Admit this to be technically true, non constat that the fee simple title is assessed. Certainly it is not shown by express words that the fee simple title is assessed, therefore it can only be implied from such matters as are embodied in the assessment roll. The mere fact that the Assessor has assessed, by the most apt words of description which could be chosen for the purpose, “ a lot and a fraction of a
This seems to have become the settled law in California, as I can find no later decision holding the contrary; and by a familiar rule
The only remaining question which I propose to consider at this time, is the ruling of the Court below, in also rejecting the tax deed as evidence for plaintiff. The deed, so far as I can discover, is in the form required by the Act. It recites the assessment, judgment, execution, levy and sale. It shows that the assessment was made against the entire property, and not on the separate and distinct parcels. In the view which I have taken of this question, it -would follow that the sale being had in pursuance of an illegal and unauthorized manner of assessment, it conferred no right or title to the purchase. But it is claimed on behalf of the plaintiff, the purchaser at the tax sale, that as by Section 36 of the Acts of 1864-5, p. 289, under which Acts this assessment and sale were made, “ the deed derived from the sale of real property ” being declared to be “ conclusive evidence of the title,” that although the assessment may not have been made in conformity with the law, yet the deed is conclusive in favor of plaintiff’s title. The power
From this it follows that the deed was properly excluded.
Other questions growing out of the several propositions discussed by counsel in this case have been incidentally alluded to, but Avhich I do not deem necessary to consider until such time as they necessarily arise in some proceeding. One of these questions is in reference to the time when the State may tax the fee simple title to lands — whether at the time of the payment to the land officers or not until after the issuance of a patent; also, as to the effect of a tax of the possessory right of an individual claimant for taxes assessed and levied on such possessory right prior to the procurement of a patent from the Government. These are important questions, and demand proper consideration to be given to them before being passed upon.
For the reasons herein stated, I concur in the judgment of affirmation.
Rehearing
RESPONSE TO PETITION EOR REHEARING.
Opinion by
concurring.
The petition for rehearing in this case presents no new points, and would not require any response from us but for the fact that the opinion of the majority of the Court seems to have been mis
The first proposition the Court lays down is this: that taxing or assessing a piece of land in general terms, is taxing or assessing its whole value. When we say that a piece of land is worth $1,000, we do not mean that a lease for one year, for ten years, or for life, in that property, is worth a thousand dollars, but that the entire fee simple title is worth that sum. If we mean to express the value of any lesser estate, we say a lease for one year, for ten years or for life, in such a piece of land, is worth so much. So when an Assessor describes property by metes and bounds, and says it is worth so many dollars, he means that the entire estate in that land is worth so much. If the title has passed from the Government to an individual, all the Assessor usually has to do is to describe the land by metes and bounds and give its entire value. The property then is liable for the entire tax, although several persons may be holding different estates therein. For instance: A is in possession of a piece of land, having a lease for five years from B; B has a lease for ten years from C; C has an estate in fee simple; the whole interest in the land is worth $1,000. Undoubtedly the Assessor might assess the whole either to A, B or C, and other owners, known and unknown, and the assessment would be perfectly good — or he might assess A’s interest at three hundred dollars, B’s interest at two hundred dollars and C’s interest at five hundred dollars, and it would be equally good. But when the United States owns an interest in the land, the Assessor cannot make a general assessment of the value of the land; for if he does, he is assessing that which is free from all State taxation, and the assessment is absolutely void on that account. But if an individual has any preemption or possessory right therein which is valuable, over and above the Government price of the land, that may be taxed. But it must be shown distinctly that it is this possessory right and not the land itself which is taxed.
There is a great deal said in the petition for rehearing about
We held that the second column, which describes the property to be assessed, clearly described the land which was not subject to taxation. We further intimated that possibly this misdescription in the second column might have been corrected by a proper entry in the seventh column. But undoubtedly the proper description of the property to be taxed should have been given in the second column, and then the entry in the seventh would perhaps have been unnecessary. If necessary, it would only have been to show the number of acres in the claim, and not to show the character of the tenure.
Petition denied.
The opinion heretofore given by me in this case sufficiently presents my views in respect to it at the present time. In that opinion, it will be remembered that I concurred in the judgment of affirmance, but for different reasons than those assigned by my associates. Entertaining these views, I am in favor of granting a rehearing, not for the purpose of affecting the ultimate character of the judgment, but solely for the purpose of enabling the majority of the Court to place their decision on what I conceive to be the correct basis on which it should rest.