Electrolytic Copper Co. v. Rambler Consol. Mines Corp.

*309 Kimball, Justice. This is a statutory action to recover the possession of real property. The judgment of the district court on a trial without a jury was for the plaintiff, and the interested defendant brings error. The parties will be called plaintiff and defendant as in the court below. The property consists of ten lode mining claims, named Rambler, Rambler No. 2, Rambler No. 3, Rambler No. 4, Rambler No. 5, Isabella No. 1, Isabella No. 2, Isabella No. 3, Isabella No. 4, and Strangler. Their total area is something less than 200 acres in sections 4 and 5, twp. 14, and sections 32 and 33 in twp. 15, range 79. Before or during the year 1906 all the claims were patented, and the patents recorded in the office of the county clerk of Albany County. The title after patent until 1908 was in Rambler Mining and Smelting Co. In January, 1908, the claims were conveyed to Rambler Copper and Platinum Co., by a deed recorded in June of the same year. Title remained *310 in tbe last named company until May, 1919, when the claims were conveyed to the plaintiff. The defendant relied on title obtained through a sale in 1914 for taxes for the year 1913. The decision of the ease depended on the validity of this tax title. The plaintiff claims that the tax sale was void for many reasons, several of which we deem it unnecessary to consider. We think the facts with reference to the assessment of the property warranted a finding by the trial court that the tax sale was void because the property was not described as required by the statute. Section 2775, Wyo. C. S. 1920, provides, among other things, that lands shall be assessed by township, range, section or part of a section, and where such part is not a legal sub-division, by "some other description sufficient to identify it. ’ ’ The same section provides also that the assessment roll shall specify the name of the individual or corporation to whom any property shall be taxable, which means the owner. Hecht v. Boughton, 2 Wyo. 385, 400. In all the records of assessment and sale the property in question is listed as belonging to Rambler Mining and Smelting Company. On the assessment schedule, returned by the assessor, it is described as 360 acres of "real estate in Sec. 34, Twp. 15, Range 79;” on the combined assessment roll and tax list and on the record of sales, as "mining claims;” and in the notice of sales as "mining claim.” No part of the claims was in section 34; they did not embrace 360 acres, but only 200 acres; they had not belonged to the owner named for some five years, as clearly, shown at the time of assessment by the deed records of the county, and there was no evidence that Rambler Mining and Smelting Company did not own other real estate or other mining claims in the section mentioned in the assessment schedule. In reference to the error in the name of the owner, it is said in argument that the inference may be drawn from the record that the plaintiff is not only the successor in interest of the Rambler Mining *311 and Smelting Co., but that it succeeded to those rights by virtue of consolidation and change of name. Whether this inference might have been drawn by the trial judge, we need not say. The evidence certainly did not require such an inference, and if the facts that might have been inferred would have, called for a different judgment, we must assume that they were not established. It seems, therefore, that the description “real estate,” or “mining claims,” or “mining claim,” was not only indefinite, but every stated fact as to location, ownership and acreage was erroneous. It is inferable from the evidence that the Rambler Copper and Platinum Company, which owned the property at the time of the tax sale, owned at that time several other mining claims in that locality. - In the circumstances, it was impossible for any one to say from the tax records that the ten claims in question were the ones taxed and sold. The defendant introduced evidence tending to prove that the claims in question were known in that locality as “Rambler mine,” “Rambler mines,” or “Rambler mining property.” As the property was not assessed by any of these descriptive terms, we cannot say that this evidence required a finding that 'the mining claims in question were sufficiently identified by the description in the tax proceedings. The description of real property should, under the statute, be “sufficient to identify it.” The rule would probably be much the same in the absence of the statute. Cooley, Taxation (4th ed.) Secs. 1175, 1416. This is required as notice to the owner as well as to the public generally that the described property will be sold. The description should be sufficiently definite to enable the owner and prospective purchasers to identify the lands. Williams v. Bowers, 197 Mass. 565, 84 N. E. 317; Waterman v. Shrewsbury, 83 N. J. L. 286, 84 A. 204. The following are a few of many decisions that could be cited to shoAV the necessity of a description sufficient to identify the land, and that to meet that test more is required than is *312 found in this ease. Raymond’s Lessee v. Longworth, 14 How. 76, 14 L. ed. 333; Bird v. Benlisa, 142 U. S. 664, 125 Ct. 323; 35 L. ed. 1151; Sullenger v. Baecher, 55 Ind. App. 365, 101 N. E. 517; Moran v. Thomas, 19 So. Dak. 469, 104 N. W. 212; Scott v. Parry, 108 La. 11, 32 So. 188; Zink v. McManus, 121 N. Y. 259, 24 N. E. 467; Martin v. White, 53 Ore. 319, 100 P. 290; Smith v. Los Angeles, 158 Calif. 702, 112 Pac. 307. Our attention is called to Section 2881, Wyo. C. S. 1920, providing that: “No irregularity or informality in the advertisements, shall affect in any manner, the legality of the sale, or the title to any real property conveyed by the treasurer’s deed under this chapter, but in all cases the provisions of this chapter shall be deemed sufficient notice to the owners, of the sale of their property.” This section was considered in Hecht v. Boughton, 2 Wyo. 383, 402, and Investment Co. v. Mallen, 25 Wyo. 373, 384, 170 Pac. 763. The statute, as shown by the discussion in those cases, was not intended to authorize tax sales without notice, but to cure certain defects in the notice of sale only. The statute presupposes that the property will be assessed as required by law. In Hecht v. Boughton, supra, when considering a notice of sale defective for failure to state the name of the owner, it was said that “though under this section the omission from the advertisement of the owner’s name might not prejudice the sale, all the proceedings prior to the advertisement must conform to the statute, and to the principle which it proceeds upon, in order that its provisions may work such notice.” Whether this statement' that “all the proceedings prior to the advertisement must conform to the statute ’ ’ is too broad, we need not inquire. It is at least clear that if, as in this case, neither the name of the owner nor a description of the lands is shown anywhere in the tax *313 proceedings, the notice necessary as the foundation of the tax lien is lacking, and the sale void. Section 2894, C. S. 1920, provides that real estate that cannot be sold for the amount of taxes and cost of advertising, or on which no bids are offered, “shall be bid in by the county treasurer, and shall then become the property of the county.” Section 2895 provides that real estate so bid in shall be assessed and taxed each year the same as other real estate, but shall be placed by itself on a separate tax roll and assessment list, and the valuation thereof not reckoned as a part of the valuation of the county. Section 2896 provides that, “after such real estate has become county property, the county commissioners of the county owning such property, shall have authority to dispose of the same at any time, at either public or private sale.” Section 2897 provides for redemption of such property within “two years from the date of such purchase b'y the county.” Under the foregoing statutes the property in question was “bid in” by the county on June 27, 1914, and sold by the county to William Benton, defendant’s grantor, on November 7, 1919. The present action was commenced in July, 1922, and defendant contends that it is barred by Section 2844, which reads: “No action for the recovery of real property, sold for non-payment of taxes, shall be maintained unless the same be brought within six years after the date of sale for taxes aforesaid. ’ ’ This section is a substantial copy of a part of a similar statute of Iowa (Sec. 790, Rev. L. Iowa, 1860), and probably was adopted from that state. Investment Co. v. Mallin, 25 Wyo. 373, 386, 170 Pac. 763. It became the law of our Territory as part of an act approved Dec. 10, 1869. Ch. 109, C. L. 1876. We do not find that the statute was construed in Iowa before that date, though it had been *314 held there that the title to real property sold for taxes did not pass out of the owner until the period for redemption had expired and the tax deed had been executed and delivered. Williams v. Heath, 22 Ia. 519. It is clear that the statute would not start to run in favor of a purchaser at a tax sale until he had a deed for the property, or, at least, until he was entitled to a deed. This was assumed in our decision, Matthews v. Blake, 16 Wyo. 116, 92 Pac. 242, holding that the limitation did not apply in favor of a tax-purchaser holding under a void deed though he had possession of the property for the full period mentioned in the statute. When section 2844 was enacted it was intended to apply only to the ordinary case of sale to a private purchaser. The statutes authorizing counties to “bid in” property at tax sales were not passed until 1899. In endeavoring to apply the provisions of section 2844 to proceedings under Sections 2894 to 2897, we must see how the operation of the limitation statute is affected by the fact of possession. The limitation is against an “action for the recovery of real property.” We see no reason for extending this language by construction, and take it to have reference only to the common law action of ejectment or its statutory substitute. One in actual possession of property has no reason for trying to recover it. He cannot maintain an action for that purpose, and a law requiring him to institute one would be absurd. The duty to bring an action to recover the property is on the person who is not in possession. When, therefore, the sale is of lands occupied by the holder of the patent title, the statute does not start to run in favor of the tax-purchaser until he takes possession. This view which seems quite clear on reason is supported by ample authority. 37 Cyc. 1505-1506; Waln v. Shearman, 8 Serg. & R. 357, 11 Am. Dec. 624; Baldwin v. Merriam, 16 Neb. 199, 20 N. W. 250; Bradshaw v. Brady, 43 So. Dak. 24, 171 N. W. 366; Long v. Boast, 153 Ala. 428, 44 So. 955; Mason v. Crowder, 85 Mo. 526; Martin v. *315 White, 53 Ore. 319, 100 Pac. 290; Lewis v. Disher, 33 Wis. 504, 133 Pac. 1057. A different construction might render the statute objectionable on constitutional grounds. Buty v. Goldfinch, 74 Wash. 532, 133 Pac. 1057. It is said in Eldridge v. Kuehl, 27 Ia. 160, 176, that the Iowa statute was borrowed from, or substantially a copy of, the Pennsylvania statute. In the Pennsylvania case of Waln v. Shearman, supra, it was said (p. 362): “One thing seems certain, and that is, that it was intended to allow five years for bringing an ejectment, and it was also intended, that the person should be forever barred who neglected to bring his action within these five years. The- question is, then, what is to be the commencement of the period of limitation? The best answer appears to be, the first moment when the action could have been brought; that is, the instant that possession is taken by the purchaser. ’ ’ The lands in question in Waln v. Shearman were “unseated.” After that decision an act was passed authorizing ejectment against a tax-purchaser of unoccupied lands. Purden’s Dig. (13th ed.) p. 1297. That act worked a change in the rule as to unoccupied lands (Robb v. Bowen, 9 Pa. St. 71), but Waln v. Shearman continues to be authority on the point we are now considering. We decide nothing as to the effect of our statute while the lands remain unoccupied. In Baldwin v. Merriam, supra, the Nebraska court considered a statute like that of Iowa. C. S. Neb. 1881, p. 425, Sec. 134. The court said: “Even if the (tax) deeds had been valid on their face the statute would not commence to run in favor of the holder until he took possession. A party in actual possession of real estate cannot be ousted from such possession or his title divested by merely recording a tax deed *316 of wliieb be may not be aware and under which nothing is claimed. If a party claims under a tax deed and invokes the aid of the special statute of limitation he must bring himself within the rule as to adverse possession. ’ ’ The evidence in the case at bar in regard to the possession of the lands in question was not very clear. The county did not take possession, and it is doubtful whether the statutes contemplate that it should. The possession of defendant’s grantor (the county’s grantee)- began in the fall of 1919. The trial court was warranted in finding that plaintiff and its grantors were in actual possession at all times prior to 1919. The only understandable testimony to show that the property was unoccupied during that period was to the effect that no work was done there after a fire that occurred in 1918. If the defendant relied on the limitation statute it should have established the facts to bring the statute into operation. As this action for recovery of the property in question was brought less than six years after the time when it might first have been brought, it is clear under the foregoing views that the limitation of section 2844 had not run. "We find no error in the record and the judgment will be affirmed. Affirmed. Potter, Ch. J., and Blttme, J., concur.