Opinion
No. 6943.
September 24, 1941 Rehearing denied October 7, 1941
APPEAL from the District Court of the Fifth Judicial District for Caribou County. Hon. Isaac McDougall, Judge.
Action to quiet title. Judgment affirmed but remanded for further proceedings in regard to reimbursement of payments for delinquent taxes.
F.E. Tydeman, for Appellants.
The plaintiff must depend upon the strength of his own title and not on the weakness of any other party. ( Washington State Sugar Co. vs. Goodrich, 27 Idaho 26; Steinour vs. Oakley State Bank, 45 Idaho 472; Snell vs. Stickler, 50 Idaho 648; 22 Cal. Jur., 167.)
The tax deed to the appellant is prima facie evidence of the title. (22 Cal. Jur., 168; Andrews vs. Northstreet Canal, C 052 Idaho 117; Armstrong vs. Jarron, 21 Idaho 747; Shaid vs. Crolford, 54 Idaho 408.)
R.J. Dygert, for Respondent.
Counsel for respondent cites no authorities.
Respondent brought suit to quiet title to two patented sulphur mining claims variously and ununiformly described in the filings on, and locations and transfers thereof, but now sufficiently known and described as Lot 38 and Lot 1351 with their respective descriptions by metes and bounds, in the Southwest quarter and the Southeast quarter of Section 2, Township 9 South, Range 42 E. B. M., in the Soda Springs Mining District as set forth in the complaint and decree. Numerous parties were named as defendants. All defaulted except Caribou County and the appellants Chapman and wife (hereafter referred to as appellants).
Caribou County filed the following disclaimer: "Comes now Caribou County one of the defendants in the above entitled action and disclaims any interest in and to the real property described in the complaint in the above entitled action except that Caribou County has a lien on said premises for the 1939 taxes as shown by tax collectors No. 1598, for $12.02, together with penalty and interest." Appellants filed an answer and cross-complaint asserting title in themselves and asking only that such be so quieted.
The facts are contained in the abstract of title introduced over appellants' objection that the abstract did not show title in respondent and a stipulation reciting substantially, so far as pertinent, that respondent has been in possession of the property since September 15, 1922; that appellants and their joint predecessors in interest went into possession March 8, 1937, and claim under a deed from Caribou County, which received the property because of delinquent and unpaid taxes.
It is axiomatic that in a quiet title suit each party must recover on the strength of his own title. ( Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073; Steinour v. Oakley State Bank, 45 Idaho 472, 262 P. 1052; Snell v. Stickler, 50 Idaho 648, 299 P. 1080; Federal Land Bank v. Union Central Life Ins. Co., 51 Idaho 490, 6 P.2d 486; Kantola v. Hendrickson, 52 Idaho 217, 12 P.2d 866; Gerber v. Wheeler, (Ida.) 115 P.2d 100.)
The descriptions in the transfers to the county which are the basis of appellants' asserted title consisted merely of the following: "A 35 acre tract in North half of Sec. 11 Tp. 9 S. R. 42 E. B. M. together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, possession and claim, as well in law as in equity, of the said Tax Collector of the said County as a taxing unit and Collector for other taxing units." (sheet 99) and "35.52 acre Tract in Section 2, Twp. 9 S. R. 42 East Boise Meridian, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in anywise appertaining," (sheet 106). These were fatally defective, and neither the county or appellants acquired title thereby. ( Little v. Burlingham, 33 Idaho 757, 198 P. 464; Hedrick v. Lee, 39 Idaho 42, 227 P. 27; Western Loan Building Co. v. Bandel, 57 Idaho 101, at 110, 63 P.2d 159; Norrie v. Fleming, (Ida.) 112 P.2d 482; Miller v. Daniels, (Wash.) 92 P. 268.)
As to appellants' objections to respondent's title, respondent has held under color of title for more than the prescriptive period, which justified a finding in his favor. ( 5-203 and 5-207 I. C. A.; Boise City v. Wilkinson, 16 Idaho 150, at 173, 102 P. 148; Wilson v. Linder, 21 Idaho 576, at 588, 123 P. 487, 42 L.R.A. (N.S.) 242, 1913E Ann. Cas. 148; Crandall v. Goss, 30 Idaho 661, 167 P. 1025.)
The county's asserted lien may be enforced by the statutory method.
The property was sold by the county to appellants for $40. Though appellants did not ask for reimbursement thereof, in the event of the failure of their title, respondent should in equity repay them. ( Johnson v. Sowden, 25 Idaho 227, 136 P. 1136; Pleasants v. Henry, 36 Idaho 728, 213 P. 565.)
On the oral argument respondent suggested waste committed by appellants would, if litigated, offset such reimbursement. The case is therefore remanded for the parties to reform their pleadings if they so desire and have this matter adjusted by the trial court. ( Smith v. Stanfield, 29 Idaho 190, 158 P. 239.) Otherwise judgment is affirmed.
Costs awarded to respondent against Francis B. Chapman.
BUDGE, C.J., and MORGAN, HOLDEN and AILSHIE, JJ., concur.
Denying Petition for Rehearing October 7, 1941
Appellant's petition for rehearing urges the original opinion failed to recognize Section 5-210 I. C. A.
" 5-210. Oral claim — Possession defined — Payment of taxes. — For the purpose of constituting an adverse possession, by a person claiming title not founded upon a written instrument, judgment or decree, land is deemed to have been possessed and occupied in the following cases only:
1. Where it has been protected by a substantial inclosure.
2. Where it has been usually cultivated or improved.
Provided, however, that in no case shall adverse possession be considered established under the provisions of any sections of this code unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, state, county or municipal, which have been levied and assessed upon such land according to law."
Claimant holding by adverse possession need pay only taxes "levied and assessed." ( Swank v. Sweetwater Irrigation etc. Co., 15 Idaho 353, 98 P. 297; Dickerson v. Hansen, 32 Idaho 18, 177 P. 760.) The abstract shows none were levied or assessed between 1930 and 1937, inclusive, or a period of eight years, more than the prescriptive period, during which time respondent held under color of title; hence his title then ripened, of which he has not yet been divested. ( Cramer v. Walker, 23 Idaho 495, 130 P. 1002.)
The petition, thus being without merit, is denied.
BUDGE, C.J., and MORGAN, HOLDEN and AILSHIE, JJ., concur.