Smith v. City of Nampa

AILSHIE, J. This is an action to quiet title. Judgment was entered in favor of the plaintiff and defendants appealed. Respondent is the owner of Block 16, Pleasants Addition, and Block 13, Homestead Addition, to the City of Nampa. Both tracts are located within the boundaries of the Nampa & Meridian Irrigation District. A part of these two tracts is situated in Sewer District No. 22 and the balance in Sewer District No. 26, in the City of Nampa. *739 Prior to 1920 Nampa & Meridian Irrigation District acquired title to the Ridenbaugh canal system and the waters diverted thereby and appurtenant water rights, including a water right acquired from the Boise Project of the United States Reclamation Service, together with an interest in the project works sufficient for the carriage of the waters necessary to supply the water users under the Ridenbaugh canal system. At that time the irrigation district apportioned 1.125 inches of water from the Ridenbaugh canal water rights and 1.352 acre-feet of water from the water rights acquired from the Boise Project to Block 13 of Homestead Addition to the City of Nampa, and duly assessed the cost thereof to that block. The annual assessments for these benefits were paid up to 1928 except a balance of $26.66 for the Ridenbaugh water right and a balance of $81.25 on account of the assessments to cover the contracts for the purchase of the water rights from the Boise Project, which unpaid balances were evidenced by outstanding bonds of the district. Prior to 1920 the Nampa & Meridian Irrigation District also apportioned water rights from its Boise Project allotment to Block 16, Pleasants Addition, and prior to 1928 had collected all the assessments against that block excepting a balance of $138.60, which represented a past due assessment collectible by the district and owing to the United States on the contract of purchase of water rights from the Boise Project. During 1928, and each 'succeeding year including 1935, the Nampa & Meridian Irrigation District made an annual assessment against Block 13 sufficient to defray the balance of the unpaid purchase price of the water right for said tract and to meet the operating maintenance charges for the district. In 1926 and each year thereafter, up to and including 1935, it made similar annual assessments for like purposes against Block 16. The assessments for the year 1926 were not paid and a deed issued to the district for Block 16, Pleasants Addition, July 23, 1930; and the assessments for the year 1928 on Block 13 were not paid and a deed issued to the district therefor on June 1, 1932. It appears that the proceedings were, in all respects, regular in accordance with the statute, in the matter of apportionment of benefits, laying of annual assessments, entry *740 of delinquencies and issuance of deeds. It further appears that a part of the assessments, made subsequent to the issuance of the tax deeds, had been certified to and became a pai’t of the records of the recorder’s office of Canyon county, and that the balance of said assessments was carried on the records of the district. It also appears that prior to 1921 the City of Nampa duly and regularly adopted ordinances creating Sewer Improvement Districts Nos. 26 and 22, which districts comprised both Blocks 16 and 13, and duly and regularly assessed and apportioned benefits to the various tracts of land within the respective districts, including the lands herein involved for sewerage improvement; and that such apportionments of benefits were duly approved and confirmed. It was further provided that the assessment of benefits should be paid in, annual instalments. Annual assessments were duly levied and certified up to and including the year 1926 and were duly certified to the treasurer of Canyon county for collection. These assessments were levied and became a lien on the property involved herein prior to the date of the acquisition of plaintiff’s title. Subsequent to the year 1926 the instalments of assessments have been carried on the rolls of the City of Nampa but up to and including 1926 the annual assessments for both districts (26 and 22) were certified to the treasurer of Canyon county for collection. The county treasurer’s books showed improvement district assessments on Block 16 delinquent for 1926 and like assessments against Block 13 delinquent for 1924, 1925 and 1926. The rolls in the treasurer’s office of the City of Nampa showed unpaid improvement district instalments levied against Block 16 for 1927, 1928, 1929 and 1930, and unpaid like instalments levied against Block 13 for 1927, 1928, 1929 and 1930. In the meanwhile the state and county taxes were regularly levied and assessed against these tracts of land; the taxes on Block 13 for the year 1925 and subsequent years were not paid; and January 4, 1930, this block was deeded to Canyon county for taxes levied against it for 1925; the taxes on Block 16 for 1926 and subsequent years were not paid and January 5, 1931, the property was deeded to Canyon county for the 1926 delinquent taxes. March 27, 1935, the county *741 sold and conveyed Block 16 to plaintiff and February 28, 1934, it sold and conveyed Block 13 to plaintiff. It is agreed that the proceedings were all regular, both in the taking of the deeds by the county and in the conveyance of the property to plaintiff. No question is raised here as to the regularity of any of the proceedings leading up to the execution and delivery of the various deeds mentioned. A sprinkling tax was also involved in the issues but it is admitted that the proceedings laying that tax were irregular and that it is void. The trial court entered a decree quieting respondent’s title to both tracts in issue and directing that the treasurer of the City of Nampa cancel on the records of her office all City of Nampa assessments, levied against the lands in question for Sewer Districts 22 and 26; that the treasurer of Canyon county cancel on the rolls in her office all City of Nampa assessments; that the treasurer of the Nampa & Meridian Irrigation District cancel upon the rolls of the district all irrigation assessments levied against Block 16 prior to March 27, 1935, and all irrigation assessments levied against Block 13 prior to February 28, 1934; that the recorder of Canyon county cancel upon the records in his office all irrigation district assessments certified to his office by the Nampa & Meridian Irrigation District on Block 16 prior to March 27, 1935, and all assessments which had been certified to him by the Nampa & Meridian Irrigation District on Block 13 prior to February 28, 1934. The question which confronts us on this appeal is: Did the county’s deeds convey these two tracts of land to respondent free from the assessments levied by the irrigation district and the assessments levied by the city for the benefit of the sewerage improvement districts? It seems to us that sections 61-1032 and 42-718, I. C. A., when read together and construed in the light of section 7, article 7 of the cqnstitution, make it plain that it was the intention of the legislature to carry out the mandate of the constitution, to the effect that “taxes levied for state purposes, ’ ’ shall be a prior and superior lien to all other taxes, assessments, liens or incumbrances of whatsoever kind or character. (Cunningham v. Moody, 3 Ida. 125, 28 Pac. *742 395; Guheen v. Curtis, 3 Ida. 443, 31 Pac. 805; Epperson v. Howell, 28 Ida. 338, 154 Pac. 621.) It was consequently provided by the legislature that, where an irrigation district was compelled to take a deed for delinquent assessments, such deed should convey an “absolute title to the lands described therein, free of all encumbrances except mortgages of record to the holders of which notice has not been sent as in this chapter provided, and except any lien for assessments which have attached subsequent to the assessment resulting in the sale and except for any lien for state ancl county taxes.” (Sec. 42-718,1. C. A.; italics ours.) It will thus be seen that the legislature never contemplated that a sale for irrigation district assessments could ever become superior to a “lien for state and county taxes.” On the other hand, when the legislature came to dealing with the general subject of “Payment and collection of taxes on real property” (chap. 10, Title 61), it provided that where the tax has not been paid, and it has become necessary for the county to take title to the property, it may thereafter proceed to sell the property and that, “The deed conveys to the grantee the absolute title to the land described therein, free of all encumbrances except mortgages of record to the holders of which notice has not been sent as provided in section 61-1027 and except any lien for taxes which may have attached subsequently to the assessment.” (Sec. 61-1032, I. C. A.) We understand it to have been the legislative intention, by this provision, that, when the county takes a deed under sections 61-1026 to 61-1032, inclusive, it takes a clear title to the property “free of all encumbrances except mortgages of record to the holders of which notice has not been sent as provided in section 61-1027 and except any lien for taxes which may have attached subsequently to the assessment.” It was held by this cojirt in State v. Stuart, 41 Ida. 126, 238 Pac. 305 (cited with approval in Larson v. Gilderoy, 45 Ida. 764, 767, 267 Pac. 234, and Heffner v. Ketchen, 50 Ida. 435, 440, 296 Pac. 768), that the statute reserved to the county a lien for tax delinquencies occurring subsequently to the assessment for which the county took the tax deed. *743 Carrying out this line of thought, and what is believed to have been the legislative intention, the legislature at its 1927 session provided for sale by the county of property acquired through such tax deeds and defined the title that should be conveyed by deed from the county to a purchaser as follows: “Any such sale made by the board of county commissioners of property acquired through tax deed shall, subject to the provisions of this section, vest in the purchaser all of the right, title and interest of the county in the property so sold, including all delinquent taxes ivhich have become a lien on the property since the date of the tax sale certificate upon which any tax deed has been issued,” etc. (Sec. 30-708, I. C. A. Italics ours.) Under the decision of this court in Heffner v. Ketchen, supra, the foregoing statute was construed as vesting in a purchaser from Ada county of real property acquired by the county through tax deed, a title “free of the lien of all state, county, municipal and school district taxes and drainage district assessments attaching since the first Monday in January, 1925 [the date on which the tax attached for which deed to the county was made], upon entry of delinquency which had the force and effect of a sale in trust for the county, under C. S. sec. 3241.” That decision appears to express a reasonable construction of section 30-708, supra, as enacted in 1927. It should be observed, however, that in holding local improvement “assessments” to be “taxes,” within the purview of sections 30-708 (3423, C. S.) and 61-1032 (3263, C. S.), the court was dealing with and referring to annual instalment assessments as spread on the tax rolls for a specific year, and was not considering and did not include therein an entire or aggregate apportionment of benefits to be paid in a number of annual instalments to be subsequently levied, certified and entered on the rolls each year against the several tracts of land in the assessing district. No valid reason has been advanced for making any distinction between an assessment levied by a drainage district and one levied by an irrigation district, — each is a charge and lien against the lands of the district; and the fact that *744 one (drainage district assessment) is paid to and collected by the county and the other by the irrigation district can make no difference with the title the county acquires by a tax deed; it is, and should be, as absolute in the one case as in the other. The quotation from section 30-708, hereinbefore set out, having been incorporated in the statute by the 1927 legislative session (Sess. Laws 1927, chap. 159), it is now urged by appellants that, since this statute was enacted subsequent to the apportionment and confirmation of benefits in the respective taxing districts herein affected, it cannot apply in this case. We think the objection untenable for the reason that the taxing units and all persons dealing with them had notice of the constitutional taxing power of the state and county and that such taxes constitute a lien superior to all other claims or liens. (Sec. 7, art. 7, and eases cited, supra.) In the second place the bond and assessment creditors, as well as mortgagees and other lienholders, of any of these taxing units or districts, and the districts as well, have the right to protect themselves and preserve their tax or assessment liens by paying the state and county taxes or redeeming from tax sale at any time before the property is finally sold by the county. (Sec. 61-1023, I. C. A.; Johnson v. Sowden, 25 Ida. 227, 136 Pac. 1136; Rice v. Rock, 26 Ida. 552, 144 Pac. 786.) That is the reason for service of the notices required by sec. 61-1027, I. C. A., before issuance of tax deed and is further manifested in the requirement that any mortgagee or lienholder, who wishes notice of the tax delinquency, shall file a request for such notice with the treasurer. In this respect a bondholder is placed in the same position as a mortgagee or other lienholder and is afforded equal means of protecting his security. When superficially viewed, some of our decisions may seem in conflict on these issues but it is believed that such is not the case and that if they are read in the light of the law, as it appeared on the statute hooks at the time the particular actions arose, such seeming conflict will disappear. The judgment of the district court should be affirmed, and it is so ordered. Costs awarded to respondent. Budge and Givens, JJ., concur.