Haskins v. Roseberry

HANEY, Circuit Judge. Haskins, who claims to be the receiver of certain property, appeals from a decree quieting title to such property in appellees, in a suit brought by Haskins to obtain a decree declaring that he was the owner of such property as receiver. The Tuscarora-Nevada Mines Company, hereafter called the mining company, was a Maine corporation. On April 14, 1913, suit was filed against it in a United States District Court in New York, and on the same day, Haskins was appointed receiver of all its properties. On May 8, 1913, suit was filed against the mining company in the court below, and on August 19, 1913, Haskins was appointed ancillary receiver of the mining company’s properties in Nevada. On July 6, 1914, Judge Farrington of the court below entered an order that: “There being no answer to the call of this case, ordered that the same be, and is hereby dismissed”. On March 17, 1917, Judge Far-rington entered an order vacating his order of dismissal entered on July 6, 1914 on the ground that he was disqualified to sit in the case because he was a stockholder in the mining company. On May 22, 1917, in the court below, another judge vacated the order of July 6, 1914, as “inadvertently” made, and reinstated the cause. On June 19, 1917, Haskins filed a report in the court below reporting receipts and disbursements in the amount of $78,584.15, and filed a similar report in the New York suit on June 30, 1917. On April 13, 1918, the New York court ordered the case “marked off” the equity calendar under equity rule 57. The taxes assessed on the property belonging to the receivership estate for the year 1921 were not paid, and the property was sold on July 17, 1922, in accordance [804] with the Nevada statutes, to a partnership. Redemption of the property was not made, and a deed therefor was made on July 19, 1923 by the proper officials. The partnership or the successors in interest have been in possession of the property. Appellees are now vested with whatever title the partnership might have had, had it made no conveyances. On January 28, 1927, the New York court entered an order as follows: “This case having been dropped from the Trial Calendar pursuant to the provisions of Rule 57 in Equity, for more than one year and no application having been made, it is “Ordered that this case be and the same hereby is dismissed without prejudice to a new suit.” On November 29, 1927, the New York court ordered Haskins to “file a further and final accounting within thirty days from the date of the entry of this order”. On March 6, 1928, Haskins filed an affidavit in the New York court, stating, among other things: “That since the filing of said accounting in 1917, no money has passed through deponent’s hands in connection with this proceeding, and matters are now as they were then * * * “Deponent prays that he be relieved from any further duties as receiver under the above-described decree entered on April 14, 1913, and that this affidavit be considered a final accounting of the receiver.” Apparently the only action taken upon the affidavit, was an order filed the same day discharging the surety on the bond Haskins had filed. On February 16, 1929, Haskins filed in the Nevada court a petition stating in part as follows: . “ * * * that he has filed his report as said Receiver in said case in New York and has been discharged and his sureties released in said case in New York. “He further reports and states that since filing his report in said case * * * on June 19th, 1917, that he has had no assets or income or property or rights of whatsoever nature except as to the mining claims referred to either as Ancillary Receiver in Nevada, or as Receiver in said New York Case and has had no means of paying the annual assessment work, or paying the taxes, or looking after the protection of said mining claims * * * “Wherefore, * * * Haskins * * * tenders his resignation in said matter and asks * * * that he and * * * Surety on his bond be released from further liability * * *» On February 18, 1929, the Nevada court entered an order that “the resignation of * * * Haskins as Ancillary Receiver in the above entitled case be, and the same is hereby accepted” and releasing Haskins and his surety “from further liability”. [29 F.Supp. 724, 725.] On April 3, 1929, the Nevada court entered an order releasing Haskins and his surety “from liability”. Nothing occurred in either the New York proceeding or the Nevada proceeding until October 9, 1936, when Haskins filed in the New York court a petition stating among other things that although the New York court had discharged the surety on the bond, he had never been discharged as receiver or divested of his custody of the assets; that because of the increase in the price of gold, the properties were of considerable value, and prayed for permission to file a bond in the amount of $2,500. On the same day the New York court entered an order granting the prayer of the petition. On December 9, 1936, Haskins filed a petition in the Nevada court substantially like the petition filed in the New York court, but included allegations to the effect that appellees had no title under the tax sale, and prayed for his reinstatement as ancillary receiver. On December 21, 1936, the Nevada court entered an order reinstating Haskins as ancillary receiver. Thereafter and on May 17, 1937, this suit was commenced praying for a decree adjudicating title to the property in question to be in Haskins as receiver, and cancelling as invalid the deed made on the tax sale by the state officers. The suit was brought on the theory that the property was in custodia legis and could not be sold for non-payment of taxes without the approval of the Nevada court. The answer denied that the property in question was in'custodia legis, alleged laches as a defense and counterclaimed for a decree quieting title in appel-lees. Appellees contend that the answer is broad enough to cover the defenses of es-toppel and statute of limitations, and appellant contends to the contrary. After making findings including the above stated facts, the court below concluded that (1) Haskins was estopped from obtaining relief because he was guilty of laches; (2) Has805 kins was barred by Nev.Comp.Laws 1929, § 6449, from obtaining relief; (3) Haskins was barred from obtaining relief by Nev. Comp.Laws 1929, § 8508; and (4) appel-lees had acquired title by adverse possession. Decree was entered quieting title to the property in appellees, and this appeal followed. Appellees contend that the suit of appellant is barred by Nev.Comp.Laws 1929, § 6449, which provides in part: “ * * * No action or counterclaim for the recovery of lands sold for taxes shall lie unless the same be brought or interposed within three years after the execution and delivery of the deed therefor by the treasurer, any law to the contrary notwithstanding”. The statute is applicable to suits in equity as well as actions at law, since in Nevada there is but one form of civil action. Nev.Comp.Laws 1929, § 8500; White v. Sheldon, 4 Nev. 280, 288. It is clear, therefore, that this cause is barred, if the point may be urged here. Appellant’s only argument regarding appellee’s contention that the cause is barred, is that appellees waived the defense by failure to plead it, because Federal Rules of Civil Procedure, rule 8(c), 28 U.S.C.A. following section 723c, requires the statute of limitations to be affirmatively pleaded. Appellees contend that the rule was complied -with. We think it unnecessary to decide whether the pleading is sufficient, because Rule 15(b) disposes of the contention in any event. That rule provides in part: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. * * * ” We think and hold that the statute above quoted bars the remedy invoked by appellant. The decree properly dismissed the complaint. Ill addition, the decree adjudicated title to the properties to be in appellees under the counterclaim. Our determination that appellant is not entitled to relief docs not pass on the question as to whether or not appellees are entitled to relief. Appellant does not contend that appellees are not entitled to relief in the event that the statute above quoted is applicable. Appellant does contend that the statute is inapplicable. The pertinent part of § 6449 not quoted above is as follows: “No tax heretofore or hereafter assessed upon any property, or sale therefor, shall be held invalid by any court of this state on account of any irregularity in any assessment, or on account of any assessment or tax roll not having been made or proceeding had within the time required by law, or on account of any other irregularity, informality, omission, mistake or want of any matter of form or substance in any proceedings which the legislature might have dispensed with in the first place if it had seen fit so to do, and that does not affect the substantial property rights of persons whose property is taxed; and all such proceedings in assessing and levying taxes, and in the sale and conveyance therefor, shall be presumed by all the courts of this state to be legal until the contrary is affirmatively shown. i}c ijj sjt >> Appellant makes the following argument: “The statute does not attempt to cure anything other than procedural defects, nor could it do more; while here the defect is pirisdictional. The statute cures defects where the power to sell exists; it does not attempt to confer a power of sale where the law prohibits the sale completely.” It is said by appellant that power to sell was lacking because the properties were in custodia legis. We do not agree with this argument. The statute deprives a court of power to hold invalid a sale for taxes on account of any “irregularity, informality, omission, mistake or want of any matter of form or substance in any proceedings which the legislature might have dispensed with in the first place if it had seen fit so to do, and that does not affect the substantial property rights of persons whose property is taxed”. The only defect urged is that the taxing authorities failed to obtain the consent of the court prior to making the sale. It is perfectly clear that the failure to obtain the consent of the court before making the sale was an “omission, mistake or want of * * * matter of form or substance” whether it be termed “procedural” or not. It is also perfectly clear that the legislature could have dispensed with the requirement that consent of the court [806] must be obtained. An example is 28 U.S.C.A. § 125. In fact we know of no rule of law which the legislature could not change except as provided in the Constitution. Affirmed.