Opinion
No. 5644.
October 8, 1931.
APPEAL from the District Court of the Fifth Judicial District, for Power County. Hon. Jay L. Downing, Judge.
Action to quiet title. Judgment for plaintiff. Modified and affirmed.
A. Humphrey and W.C. Loofbourrow, for Appellants.
The complaint here is for the sole purpose of quieting title to the premises in question, and the only attack made on these tax proceedings is confined strictly to the affidavit of the tax collector regarding the service of the delinquency notice required by sec. 3258, as amended by chap. 232, Laws of 1921, and chap. 33, Laws of 1925, and is a collateral attack. ( Wright v. Atwood, 33 Idaho 455, 461, 195 P. 625; Simonton v. Simonton, 40 Idaho 751, 42 A.L.R. 1363, 236 P. 863.)
These tax proceedings are regular, legal and binding on their face, for the following reasons: The tax deed is made prima facie evidence of the eight jurisdictional requirements of C. S., sec. 3261, and said deed is made prima facie evidence by sec. 3262 "of the regularity of all other proceedings from the assessment by the assessor, inclusive up to the execution of the deed."
This includes prima facie evidence of the regularity of the affidavit of the tax collector, showing her compliance with sec. 3258, as amended, as to the service of the delinquency notice. C. S., sec. 3259, provides that this notice and affidavit shall become a part of the record of the county clerk's office and then reads: "And which record or affidavit shall be prima facie evidence that such notice has been given." Sec. 3263, as amended by sec. 2, chap 232, Laws of 1921, provides: "The deed (Appellant's exhibit I) conveys to the grantee the absolute title to the land described therein, free of all encumbrances" except mortgages, under certain conditions and subsequent taxes.
Under these conditions, these tax proceedings are not void, but are regular, legal and binding, and are not subject to collateral attack. (C. S., sec. 3258, as amended; secs. 3259, 3261-3263; Co-operative Savings etc. Assn. v. Green, 5 Idaho 660, 51 P. 770; Wilson v. Locke, 18 Idaho 582, 111 P. 247; Armstrong v. Jarron, 21 Idaho 747, 125 P. 170.)
F.M. Bistline, for Respondent.
A sale of property for delinquent taxes is in the nature of a penalty and if the statutes authorizing such sale are not at least substantially complied with a tax deed issued thereunder is void. ( Parsons v. Wrble, 21 Idaho 695, 123 P. 638; Pretty v. Warden, 38 Cal.App. 706, 177 P. 489.)
An affidavit of the tax collector made in compliance with C. S., sec. 3259, must particularly state the facts relied on as constituting the compliance with C. S., sec. 3258. Failure to do this, or the filing of an inaccurate or insufficient affidavit, will render the tax deed void. The affidavit (Plaintiff's Exhibit "B") does not state particularly the facts relied upon as constituting a compliance by the tax collector with the conditions prescribed in C. S., sec. 3258. ( Wilson v. Glos, 266 Ill. 392, Ann. Cas. 1916B, 539, 107 N.E. 30; Egan v. Mahoney, 24 Colo. App. 285, 174 P. 1119; Cain v. Ehrler, 33 S.D. 536, 146 N.W. 694.)
Appellant Poppie acquired the real property in question from Power county following a sale to the county of the property for delinquent taxes.
Respondent, successor in interest to the prior owner, sued herein to quiet title on the theory that the county treasurer had not, prior to the tax sale and issuance of tax deed to the county, made or filed a sufficient affidavit in compliance with C. S., secs. 3258 and 3259, amended chap. 232, 1921 Sess. Laws, and chap. 33, 1925 Sess. Laws.
A proper, correct and sufficient affidavit detailing the acts performed is a jurisdictional prerequisite to the issuance of a tax deed. ( Ulrickson v. Ulrickson, 42 S.D. 225, 173 N.W. 742; Koontz v. Ball, 96 W. Va. 117, 122 S.E. 461; Wilson v. Glos, 266 Ill. 392, Ann. Cas. 1916B, 539, 107 N.E. 630; Lyman v. Walker, 192 Iowa, 982, 185 N.W. 607.) Such affidavit must show personal service on the party in possession of the premises, if there be such. ( Johnson v. Welch, 48 Idaho 284, 281 P. 748.)
The affidavit herein fails to show this, and is also deficient in other particulars. The court was correct in quieting title in respondent, since, if the county did not have good title, it could give none to appellant Poppie. ( Parsons v. Wrble, 21 Idaho 695, 123 P. 638.)
Appellant urges respondent is not entitled to relief because he did not tender the unpaid taxes, charges, etc. The court should have required such payment before quieting title, but we may order this in the judgment as a condition precedent to title being quieted in respondent. ( Hole v. Van Duzer, 11 Idaho 79, 81 P. 109; McKinnon v. McIlhargey, 24 Idaho 720, 135 Pac. 826.)
The judgment modified to that extent is affirmed; each party to pay his own costs.
Lee, C.J., and Varian and McNaughton, JJ., concur.