Bozievich v. Slechta

• Decision Date: 16 February 1946
• Docket Number: 6865
• Citation: 109 Utah 373,166 P.2d 239
• Court: Utah Supreme Court
• Parties: BOZIEVICH v. SLECHTA et al

166 P.2d 239

109 Utah 373

BOZIEVICH v. SLECHTA et al

No. 6865

Supreme Court of Utah

February 16, 1946

Appeal from District Court, Third District, Salt Lake County; A. H Ellett, Judge.

Action by Marie Bozievich against Wesley Slechta, an unmarried man and others, to quiet title to realty, wherein named defendant filed a counterclaim asking that title be quieted in him. From a judgment dismissing her complaint and quieting title in named defendant, plaintiff appeals.

Judgment affirmed.

Moyle &amp Moyle, of Salt Lake City, for appellant.

William G. Shelton and Ralph A. Sheffield, both of Salt Lake City, for respondent.

Wade, Justice. McDonough and Wolfe, JJ., concur. Larson, Chief Justice (dissenting). Turner, Justice (dissenting).

OPINION

Wade, Justice.

Marie Bozievich, the appellant herein, commenced an action to quiet title to certain real property situated in Salt Lake City, Utah, against Wesley Slechta et al., the respondents herein. The complaint alleged that she was the owner and entitled to the possession of the land and that the defendants were claiming some interest therein. The defendants Aimee Walker and Ralph Bell Thomas failed to make appearances and their defaults were duly entered. Slechta appeared and answered, pleading that plaintiff was barred from bringing this action under the provisions of what is now Sec. 104-2-5, U. C. A. 1943, because she had not been in possession of the property for a period of more than seven years prior to the commencement of this action. He also pleaded by way of counterclaim title to the property in question by reason of adverse possession by himself and his predecessors in interest for a period of more than seven years, and asked the court to quiet title in himself. After trial the court found in favor of defendant Slechta, and from a judgment by the court dismissing her complaint and quieting title in Slechta, plaintiff appeals.

From the evidence adduced at the trial it appears that appellant is the record owner of the real property involved in this action which consists of a house and two lots. This property was sold for general taxes for the year 1924 and no redemption having been made of this sale an auditor's deed was executed to Salt Lake County in 1929. There being no purchasers at the May sale held in 1929, the county placed some tenants in possession of this property and on November 4, 1936, contracted to sell the property to a Mr. Randolph C. Hill to whom it subsequently conveyed the property in 1937. After the conveyance to Mr. Hill, he evicted the tenants the county had placed in possession and took possession himself until he conveyed the property to Slechta in 1940, who has been in continuous possession since that date. Plaintiff commenced this action on November 30, 1942.

It was stipulated by the parties to this action that all taxes which had been assessed against this property since the sale in 1924 had been paid by Slechta and his predecessors in interest. It was also stipulated that because of the failure of the county auditor to affix his affidavit to the assessment rolls as required by what is now Sec. 80-7-9, U. C. A. 1943, the tax deed issued to the county was invalid. It was further stipulated that the May sale was advertised for less than 28 days and was therefore invalid.

It is appellant's contention that because of the defects in the tax sale and the May sale that the possession which the county took of the property through its tenants was in subordination and not adverse to her right of possession and that therefore the court erred in finding that she had not been in possession of the property for a period of more than seven years before the commencement of her action and in finding that the defendant Slechta and his predecessors in interest had been in open, hostile, and adverse possession for a period of more than seven years, since the evidence conclusively shows that less than seven years had elapsed from the time that the county entered into the contract to sell the property to Mr. Hill. Appellant cites Salt Lake Investment Co. v. Fox, 32 Utah 301, 90 P. 564, 13 L.R.A. N.S. 627, 125 Am. St. Rep. 865, and Home Owners' Loan Corporation v. Stevens, 98 Utah 126, 97 P. 2d 744, in support of her argument that the possession of the county through its tenants was not adverse but in subordination to the rights of the legal owner because the invalidity of tax proceedings extended the period of redemption.

In Salt Lake Investment Co. v. Fox, supra, this court held that a purchaser of a tax sale certificate did not hold the property adversely to the record owner because by the statute of this state the owner had a definite period of time within which to redeem and when the purchaser took possession of the property by virtue of a tax sale certificate it was "in effect, an admission on his part that he held subject to the owner's right of redemption."

It will be noted that possession in the above case was taken by virtue of a tax sale certificate. Such a certificate does not purport to convey title to the land. The purchaser of a tax sale certificate knows that the legal owner has a certain definite period within which he may redeem from the sale and until such period has passed it is presumed that when such purchaser takes possession he takes it in subordination to the right of the owner and not adversely to him. In the instant case the period of redemption from the sale for taxes for the year 1924 which the statute allows had passed and an auditor's deed had been executed to the county. After this deed was issued the county advertised and held a public sale in May as required by Sec. 6056 U. C. L. 1917, as amended by Chap. 140, Session Laws of Utah 1921, which reads as follows:

"Sec. 6056. Whenever a county has received a tax deed for any real estate sold for delinquent taxes, the board of county commissioners shall, during the month of May in each year, after publication once a week for four consecutive weeks preceding the date of sale, in a newspaper having general circulation in the county, * * * offer for sale at the front door of the county court house, at the time specified in the notice, all such real property not heretofore sold or redeemed; * * *. The county clerk is authorized to execute deeds therefor in the name of the county and attested by his seal, vesting in the purchaser all of the title of the state, of the county, and of each city, town, school, or other taxing district interested in the real estate so sold. * * * The board of county commissioners may, at any time after the period of redemption has expired and before the sale as herein provided, permit a redemption from any sale where the property has been sold to the county. All property for which there is no purchaser at the sale provided for in this section shall thereafter be disposed of on the day of the first regular meeting of the board of county commissioners in any month, at either public or private sale, as the said board may determine, * * *."

No purchaser having been found at the May sale which was held on May 29, 1929, the county, as we have shown, placed its tenants in possession in 1934. The county at that time thought it had complied with all the provisions relating to tax sales and had it complied strictly with all these provisions, title would actually have been vested in the county and would not have been subject to redemption. Under these circumstances the county intended to assert and did assert ownership to the property by placing its tenants in possession, and did not recognize any right of redemption in the original owner.

The case of Home Owners' Loan Corp. v. Stevens, supra, is of no aid to appellant. That case did not involve an assertion of title by reason of adverse possession. It merely held that where the May sale was invalid a private sale by the county would be void and that the period of redemption would be extended until a valid May sale was held. In so holding, we said on page 133 of the Utah report, on page 747 of 97 P. 2d, that:

"The title to the property, subsequent to the date of the purported May sale, and prior to a private sale to respondents, was the same as it was subsequent to the execution of the auditor's deed to the county and prior to the date of the purported May sale. The title, by virtue of the sale for taxes and the auditor's deed executed subsequent thereto, was in the county * * *." (Italics ours.)

This case, therefore, rather than being an aid to appellant's contention that the actual physical possession which the county took of the property through its tenants was in subordination to the rights of the record owner, is more persuasive for the proposition that the county took possession by virtue of its purported ownership of the land. Issuance of an auditor's tax deed did not give the county possession. It was the act of placing tenants in actual possession which initiated possession by the county. The fact that the auditor's deed was invalid and the further fact that because of the invalidity of the May sale a further period of redemption was vouchsafed to the record owner does not change the character and nature of the possession asserted through tenants from being one under a claim of ownership. At the time when the county took possession of the property it did so claiming that it had a valid title, there having been an attempt to comply with all the provisions relating to tax sales. The fact that there were defects in the proceedings did not change the nature of the county's claim. It was open, hostile and adverse to the record owner's right. See Welner v. Stearns et al., 40 Utah 185, 120 P. 490, Ann. Cas. 1914C, 1175, in which this court said on page 195 of the Utah report, on page 494 of 120 P.:

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