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 StateSugar 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, *Page 81 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 *Page 82 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