McGowan v. Elder

STEWART, J. — This is an action to quiet title to a certain tract of land situated in Latah county.. The plaintiffs, respondents here, base their title on a tax sale and tax deed, while the defendant, appellant here, claims title by direct conveyance from one F. C. Smith, to whom said property was assessed, and -in whom title rested at the157 time of the tax sale. The cause was tried and the court found for the plaintiffs. This appeal is from the judgment. The appellant contends that the tax sale certificate does not conform to the statute, and will. not support the tax deed based thereon. Second, that the tax deed does not conform to the statute, and therefore did not pass title to the plaintiff. It is stipulated by counsel that the lands in controversy were subject to taxation for state and county purposes for the year 1903, that being the year of the assessment for which said land was sold for taxes, and that all proceedings leading up to the issuance of the tax sale certificate were regular and legal and strictly in conformity to the laws of the state; that said land was regularly and properly assessed to one Frank G. Smith, to whom a patent had been issued by the United States government, and that thereafter said Smith by warranty deed conveyed said land to the defendant in this action. It further appears that said land was purchased at such tax sale by Latah county, and a certificate of sale issued to said county, dated July 19, 1904, and thereafter on February 1, 1907, assigned to plaintiff, George G. Pickett, to whom the tax deed was issued, dated July 15, 1910. First, as to the certificate of tax sale. It seems that the tax sale was held July 8th, 1904, and the tax certificate dated July 9th, 1904, and because the tax certificate is not dated on the date of sale, counsel for appellant contends that the certificate is void. Rev. Codes, sec. 1759, provides that “after receiving the amount of taxes and costs, the collector must make out in duplicate a certificate dated on the day of sale. ’ ’ This provision is directory, and not mandatory, and the mere fact that the certificate is not dated on the same day the sale was made does not render such tax certificate void. Rev. Codes, sec. 1788, provides, “no assessment or act relating to assessment or collection of taxes is illegal on account of informality, or because the same was not completed within the time required by law.” If the property offered at the tax sale has been legally assessed, and the sale legally made, the purchaser is entitled to a tax sale' certificate, and the fact that the auditor in issuing such tax certificate dates the same — 158 — subsequent to the tax sale does not render such tax certificate void. A substantial compliance with the statute is sufficient. (White Pine Mfg. Co. v. Morey, ante, p. 49, 112 Pac. 674; Stewart v. White, ante, p. 60, 112 Pac. 677.) In all other respects the tax certificate conforms to the statute. Second, as to the tax deed. It is contended that the tax deed is void because it fails to follow the recitals of the tax sale certificate. The tax sale certificate among other things recites, “and that unless redeemed within three years from the date of sale, the purchaser will be entitled to a deed.” Instead of this language being copied into the deed, the following language appears: “And whereas, no person has redeemed the property so sold during the time allowed by law for its redemption, and it appearing that G. G. Pickett was, on the 10th day of July, 1907, entitled to a deed for the premises so sold, as above set forth.” From this it is argued that the deed does not state that the property was not redeemed within three years from the date of sale, but merely alleges as a conclusion of law that the property was not redeemed during the time allowed by law for its redemption. Rev. Codes, see. 1763, provides: “Reciting in the deed substantially the matters contained in the certificate, and that no person redeemed the property during the time allowed by law for its redemption.” While it is true that the language used in the deed does not specifically follow the language of the certificate, to recite that the property was not redeemed within the time allowed by law for its redemption, yet the language does say that no person redeemed the property, and that Pickett was, on the 10th day of July, entitled to a deed for such premises. This is a substantial compliance with the statute, and is a sufficient statement that the property was not redeemed within the time allowed by law for its redemption. (Co-op. Assn. etc. v. Green, 5 Ida. 660, 51 Pac. 771; White Pine Mfg. Co. v. Morey, ante, p. 49, 112 Pac. 674; Best v. Wohlford, 153 Cal. 17, 94 Pac. 98; Stewart v. White, ante, p. 60, 112 Pac. 677.) It is also contended that the tax deed is void for the reason that it does not follow the recital of the tax certificate in the — 159 — following respects: The tax certificate contains this language: “That at said auction .... was the highest bidder who was willing to take the least quantity or smallest portion of the interest in said land, and pay the taxes, penalties, costs and charges due thereon, with taxes, penalties, costs and charges, including fifty cents for this certificate, amounting to $11.33, ’ ’ and then follows a detailed and specific statement of the amount of the state and county taxes, penalties, and the cost of publication, making a total of $11.33. While the tax deed recites, “that at such auction, there being no bidder, that Latah county, state of Idaho, by virtue of the law, became the purchaser of said land or lot, for the taxes, costs and charges due thereon, which taxes, costs and charges amounting to $11.33, together with $1.00 for auditor’s and collector’s fees, total being $12.33.” The fact that in issuing the tax déed the auditor recited the amount for which the property was sold, and added $1.00 for auditor’s and collector’s fees, when the law did not permit the tax collector to make a charge for the duplicate certificate when the county was a purchaser, did not render the tax deed void. In the case of Co-op. Assn. etc. v. Green, supra, this court said: “If property is a subject for taxation, it cannot escape through some technical failure of the officer to perform his duty, unless it has actually misled the party to his injury.” That the property involved in this case was subject to taxation is admitted, and that the assessment and sale were regular and in accordance with law is also admitted, and the tax deed cannot be defeated upon the ground that the officer recited therein that a charge had been made for a duplicate tax certificate when the sale was made to the county, when no such charge is allowed by law. This could in no way mislead the appellant. ■It is also claimed that the tax deed is void for the reason that it does not contain the following recital in the certificate: “The property was struck off to said Latah county, who paid the full amount of taxes, penalties, costs and charges.” Now, the; tax deed states that the land was sold to Latah county for. .-the sum of $11.33, without stating that the county paid — 160 — the full amount of said taxes, penalties, costs and charges. Referring, however, to the tax deed, we find this language: “That at said auction, there being no bidder, Latah county, state of Idaho, became the purchaser of said land or lot, for the taxes, costs and charges due thereon, which taxes, costs and charges amounting to $11.33.” This certainly in substance states the same thing as contained in the tax salé certificate, and is a sufficient recital and a substantial compliance with the statute. It is also urged that the tax deed is void for the reason that it does not contain a copy of the assignment of the certificate of tax sale from Latah county to George G. Pickett, to whom such tax deed was issued. The assignment of the tax certificate shows that the same was sold by the county to G. G. Pickett, the indorsement being in the following language: £ £ Sold to G. G. Pickett, this 1st day of February, 1907. Axel P. Ramsted, Auditor, by G. F. Walker, Deputy.” Rev. Codes, sec. 1774, authorizes the sale of tax sale certificates, and authorizes the auditor to indorse upon the same the following: “Sold to-this-day of-, ---,” and requires him to sign such indorsement. This indorsement was sufficient under the statute to transfer said certificate to Pickett. The tax deed recites, “and whereas the said Latah county, state of Idaho, under and by virtue of the law of the state of Idaho, has duly sold its Certificate of Sale No. 487, and all of its rights thereunder, unto the said party of the second part, as appears from said certificate of sale and assignment thereof, now on file in the tax collector’s office in said county.” It will thus be seen that while the deed does not contain a copy of the assignment as indorsed upon the certificate of sale, yet the deed does state that the county has sold the certificate of sale, and all rights thereunder, to the party of the second part, as appears from said certificate of sale and assignment thereof, now on file in the tax collector’s office in said county. It clearly appears from this language that the county was not entitled to the deed, and that the interests of the county had all been transferred to Pickett, and that such transfer — 161 — clearly divested the county of any interest in and to said property, and that Pickett was entitled to a tax deed upon the expiration of the period of redemption. It is also argued that the tax deed is void for the reason that it does not recite, the correct amount paid by Pickett to the county for the assignment of the tax sale certificate, it being contended that the deed should state the total amount due at the time the tax sale certificate was assigned, which not only included the sum at which such property was sold to the county, but also the accumulated interest on such sum, up to and including the date of such assignment. The statute however, does not require any such recital in the deed. It only requires that the deed shall contain the recitals contained in the certificate, which recitals relate to the time of the making and issuing of such certificate, and in this instance the deed does state the amount due the county for taxes at the date of sale, and for which sum the property was sold to the county, and it was not necessary to state in the deed the amount paid by the assignee of the certificate at the time the assignment was made by the county. In this connection it is also contended that the auditor made a mistake in calculating the amount due the county at the time of the assignment of the tax sale certificate to Pickett, in not calculating interest upon the item of twenty-five cents, charged as cost of publication, which, as counsel figure, would amount to eight cents. A sufficient answer to this contention rests in the fact that the tax deed will not be held void because of a slight clerical error made by the auditor in calculating the interest due at the time of the assignment of the tax certificate. The appellant in this case could have been in no way injured by such error. This error occurred long after the period for redemption had expired, and long after the appellant’s rights had terminated. In connection with the various objections that have been made to the tax certificate and deed, it is proper to observe that the appellant, notwithstanding these objections, admits that the property involved was subject to taxation, that it was correctly and legally assessed, and for the amount charged — 162 — against such property, and that such assessment was not paid, and that the property was sold legally and strictly in accordance with law, for such delinquency. It also further appears that after said property was sold for the 1903 delinquency, the appellant did not pay the subsequent assessments made for the subsequent years between that date and the commencement of this action, and that the respondents did pay such assessments. Under such circumstances it would be highly inequitable to now permit the appellant to have the tax deed set aside upon the sole and only ground that the officer issuing the tax certificate and tax deed did not strictly follow the language of the statute, when such acts in no way affected- the substantial rights of the appellant. (White Pine Mfg. Co. v. Morey, ante, p. 49, 112 Pac. 674; Co-op. etc. Assn. v. Green, 5 Ida. 660, 51 Pac. 771; Stewart v. White, ante, p. 60, 112 Pac. 677; Bacon v. Rice, 14 Ida. 107, 93 Pac. 511; Miller v. Henderson, 50 Wash. 200, 96 Pac. 1053; Couts v. Cornell, 147 Cal. 561, 109 Am. St. 168, 82 Pac. 194.) We find no error in the record, and the judgment is affirmed. ' Costs are awarded to respondents. Sullivan, C. J., and Ailshie, J., concur.