Fix v. Gray

AILSHIE, C. J.

This action was instituted by the plaintiff to quiet his title to a certain tract of land to which the defendant held a ta.x deed. The cause was tried and findings and judgment were made and entered in favor of the plaintiff, and defendant has appealed.

The action involved a tract of 320 acres of land situated in Latah county. It appears that the respondent has owned this land since 1884 and during all the time he has lived in the city of Lewiston, Nez Perce county. The evidence discloses that respondent has some 760 acres of land in Latah county and that he was in the habit each year of writing over to the assessor of Latah county for statement of the amount of taxes due on his holdings in that county, and on receiving statement would return a check in payment therefor.

• It seems that the assessor failed to send out the usual tax notices for the year 1907, and so respondent wrote the assessor to know what his 1907 taxes were, but did not give a description of any land he owned, merely inquiring as to the amount of taxes due on his property. The assessor replied, stating that his taxes were $133. Thereupon and on the 27th of December, 1907, respondent mailed a check to the assessor for the sum of $133 in payment of what he supposed to be his total taxes on all his lands in that county for the year 1907. As a matter of fact, when the officer had written respondent he had only sent him a statement of the amount due on one tract comprising 440 acres and had overlooked stating the amount due on another and separate tract of 320 acres. Respondent testifies that he supposed this covered his entire holdings and that he did not read the description in his tax receipt and did not notice or observe that his check for $133 had not paid his taxes on his'entire 760 acres. It is also shown that the taxes on the entire 760 acres for the year 1906 had amounted to $146.56, and respondent testifies that the amounts were so nearly the same that he supposed and understood that the $133 for 1907 covered his entire holdings in Latah county for that year.

In this way the taxes on the 320 acres of land for 1907 became delinquent, the property was advertised and sold for delinquent taxes, and the appellant herein bid in the property and after the time for redemption expired secured a tax deed. Respondent continued to pay the taxes on this land for each subsequent year of 1908, 1909, 1910 and 1911, and appears to have had no notice of the delinquency for 1907, and testifies that he knew nothing of the matter until after the issuance of the tax deed.

It also appears that the assessor failed to enter in red ink on the assessment-roll of 1907 the amount of delinquent taxes that had previously accrued against this property, and that on the assessment-roll of 1908 the red ink entry appeared against the property of a.delinquent tax for 1907 with a further record that the same had been canceled by order of the board of county commissioners, and it also appears that the record of the board of county commissioners actually shows an order canceling this delinquent tax.

The record finally stood, therefore, as if the red ink entry required by sec. 1755, Rev. Codes, had never been made, and in that respect brings this case within the rule announced in Parsons v. Wrble, 21 Ida. 695, 123 Pac. 638. There was nothing in the record to give notice to the property owner that this land had been sold for delinquent taxes.

Again, the record is quite clear that respondent was acting in good faith, endeavoring to keep his taxes paid, and that he did in fact pay all the taxes he had any notice were standing against his property or that had ever been assessed against it. The taxpayer was evidently acting in good faith, and on the other hand the assessor and tax collector seem also to have acted in good faith and not with any purpose of deceiving, defrauding or misleading respondent.

While the facts and circumstances differ, the principle of law here involved is similar to that announced in Smith v. Davidson, 23 Ida. 555, 130 Pac. 1071, and for the same reason and on the same principle entitles the property owner to the same equitable relief which was granted in that ease. (See, also, Randall v. Dailey, 66 Wis. 285, 28 N. W. 352; Cooley on Taxation, 3d ed., 809.)

A number of other reasons, some of which are valid, have been advanced in support of the judgment of the trial court and to the effect that the respondent herein was entitled to the relief which the judgment awarded him. In view of the fact that we have concluded' that the judgment in this case should be affirmed, it is unnecessary to discuss these several questions. It is quite clear that the respondent, who is the owner of this land, has acted in good faith, and while perhaps not as diligent as he might have been, he ought not to lose his property under the circumstances where he is ready and willing to reimburse the purchaser at the tax sale for all his outlay, together with interest and penalties. On the other hand, the appellant, who was the purchaser at this delinquent sale, has been in no way prejudiced and will in no way be a loser, and he will receive his money back, together with a high rate of interest and such penalties as the statute prescribes.

We shall not further discuss the questions arising in this ease. The judgment should be affirmed, and it is so ordered. The appellant will be taxed with the costs of this appeal.

The respondent, as a condition to clearing his title and canceling this tax deed, should pay to the appellant or to the clerk for his use and benefit, all sums paid out by appellant, together with interest and penalties allowed on redemption, and should also pay the costs of this action in the district court. The appellant was not in any way at fault or to blame for bidding in this property, and he took a tax deed in the manner authorized and provided by law. He should not now be required to pay the costs and expenses entailed in the district court in having this deed set aside. The whole costs incurred in the district court should be taxed up against the respondent. On the other hand, if the district court rightly decided the case, as we think it did, and that decision was against the appellant and he saw fit to prosecute this appeal, he should pay the costs incurred in bringing the case to this court.

The cause will therefore be remanded to the district court, with directions to enter a modified decree in accordance herewith, and as modified the judgment of the district court will be affirmed, and it is so ordered. Costs of this appeal awarded in favor of respondent.

Sullivan, J., concurs.