McKinnon v. McIlhargey

SULLIVAN, J.

This action was brought to quiet title to 160 acres of land situated in Bonner county, which county was formerly a part of Kootenai county. The complaint contains the allegations usual in an action to quiet title. The defendant, the railroad company, answered, setting up its title to its right of way across said land. The defendant Mc-Ilhargey by answer denies the allegations of the complaint as to the ownership of said land in the plaintiff, and alleges that he purchased said land from one Ferguson in 1905, paying therefor $1,500, and that he has been the owner and in the actual possession of said land ever since.

■ The cause was tried to the court without a jury and judgment entered, quieting the title to said land in the railroad company in its right of way and in the defendant McIlhargey for the remainder of the land. From that judgment this appeal is taken.

A motion to dismiss the appeal has been made and is based on the ground that Ignatz Weil, who is named as one of the defendants, and who, it is contended, was served with summons in the action, was not served with notice of appeal. So far as the record is concerned, it does not show that Weil was ever served with summons or that he appeared in the case in any manner. Neither the findings of fact nor the judgment refer to him. That being true, he was not an adverse party under the provisions of sec. 4808, Rev. Codes, and it was not necessary to serve the notice of appeal upon him and the motion to dismiss must therefore be denied.

The plaintiff, to support her case, offered in evidence a tax sale certificate, issued by the tax collector of Kootenai county on the 14th of July, 1904, for taxes amounting to $6.73, being the taxes on said property for the year 1903. Said certificate shows that said property was sold at tax sale to the county and that one Wm. McKinnon thereafter, in 1906, purchased said tax sale certificate from the county. Said tax certificate, on objection by the defendants, was rejected by the court. She thereafter offered in evidence a quitclaim deed from Wm. McKinnon to herself for said property, including other property, dated the 4th of March, 1911, which offer was rejected by the trial court. She also offered in evidence a tax deed, executed by the assessor and tax collector of Bonner county, dated the 26th of August, 1912, conveying said land to Wm. McKinnon, which tax deed the court rejected and refused to admit in evidence. It appears that Wm. McKinnon, the grantee in said deed, had died some six months prior to the execution of the last-named deed. Plaintiff also offered in evidence a tax deed dated February 2, 1911, executed by the assessor and ex-officio tax collector of Kootenai county, conveying said land to Wm. McKinnon, which offer was rejected by the trial court.

It appears from the record that neither the appellant nor her grantors had paid any taxes on said premises since Wm. McKinnon was entitled to a deed under said tax certificate; that the defendant, Mcllhargey, had resided on said land ever since he purchased it in 1905, and that McKinnon, the owner of the tax certificate, was entitled to a tax deed as early as 1907, but made no application for same until 1911, four years after he was entitled to it; that he stood by and permitted Mcllhargey to remain in possession of said land and improve the same and pay all taxes thereon for at least four years, and now the plaintiffo comes into a court of equity and wants her title quieted to said land under that state of facts. The equities are all with the defendants, and a court of equity, under the facts of this case, will not lend its aid to one who has so long slept on his rights and permitted other people to remain in possession of land the length of time the railroad company and Mcllhargey have been in possession of the land involved in this case. In a case of this kind the plaintiff must offer sufficient evidence to establish his right to the relief demanded.

Conceding that all of the rejected evidence had been admitted, it is clear that the plaintiff would not have been entitled to a judgment in this case, and it is a well-established rule of law that if the evidence offered by the plaintiff in support of his complaint and rejected by the court, if taken into consideration in the determination of the case, would not have entitled the plaintiff to recover, the case will not be reversed on appeal because of an error in rejecting such evidence. If the court makes an error in rejecting evidence and arrives at a correct conclusion in the case, the judgment ought not to be reversed. The plaintiff has come into a court of equity for equitable relief, and the record shows that all of the equities are with the respondents.

It is contended that appellant has at least a right to recover the amount of taxes paid for the tax sale certificate of 1904 and the penalty thereon. Under the prayer of the complaint, the court has authority to enter judgment in her favor and against McIlhargey for the amount so paid, with interest thereon at the rate of 18 per cent per annum for three years, or up to the time that Wm. McKinnon would have been entitled to a tax deed under said certificate.

The judgment must therefore be affirmed so far as it quiets the title in the defendants, and modified to the extent of entering judgment against McIlhargey for the amount of taxes paid for said delinquent certificate and the penalty thereon, with interest at the rate of 18 per cent per annum thereon for three years, which judgment shall be a lien upon said real estate, exclusive of said railway right of way, and execution may issue for its collection. Each party to pay his own costs on appeal.

Ailshie, C. J., concurs.