Columbia Trust Co. v. Nielson

• Citation: 287 P. 926,76 Utah 129
• Decision Date: 17 May 1930
• Docket Number: 4884
• Court: Utah Supreme Court
• Parties: COLUMBIA TRUST CO. v. NIELSON ET AL

287 P. 926

76 Utah 129

COLUMBIA TRUST CO. v. NIELSON ET AL

No. 4884

Supreme Court of Utah

May 17, 1930

Appeal from District Court, First District, Box Elder County; Geo P. Parker, Judge.

Action by the Columbia Trust Company against A. J. Nielson and others. From a judgment dismissing the complaint, plaintiff appeals.

REVERSED AND REMANDED, with directions.

Wm Story, Jr., and Chas. D. Moore, both of Salt Lake City, for appellant.

Irvine Skeen & Thurman and Morris & Callister, all of Salt Lake City, for respondents.

ELIAS HANSEN, J. CHERRY, C. J., and STRAUP, EPHRAIM HANSON, and FOLLAND, J. J., concur.

OPINION

ELIAS HANSEN, J.

This suit was instituted by the plaintiff, filing a complaint in the usual form, to quiet title to about 440 acres of land situated in Box Elder county, Utah. The defendants answered denying the allegations of the complaint. They also filed cross-complaints alleging title to the premises to be in M. M. Johnson, as receiver of the copartnership of A. J. Nielson and Charles S. Burton. Upon issues joined, a trial was had to the court sitting without a jury. The trial court found against the claims of both the plaintiff and the defendants. Judgment was rendered dismissing plaintiff's complaint and defendant's cross-complaints upon the ground that neither had shown title to the premises in dispute. The plaintiff prosecutes this appeal from that part of the judgment which dismisses its complaint. The defendants have filed cross-assignments of error, but they have not appealed from the judgment dismissing their cross-complaints.

The documentary evidence introduced at the trial shows the following facts affecting the title to the premises in dispute. Prior to 1919, the title to the premises was vested in A. J. Nielson and Charles S. Burton. In April, 1919, A. J. Nielson and Ettie Nielson, his wife, conveyed the whole of the premises to the Columbia Trust Company by a statutory form of warranty deed which contained this provision: "This deed is given to secure any indebtedness now due or owing by the grantors, or either of them, to the grantee, or to secure any indebtedness which may hereafter exist or become due or owing from said grantors, or either of them, to said grantee."

The deed was recorded in the office of the county recorder of Box Elder county, Utah, on October 7, 1919. The taxes levied against the premises for the year 1914 were not paid. On February 15, 1915, a certificate of sale was issued by the county treasurer of Box Elder county to the county clerk and ex-officio county auditor of such county. On April 10, 1920, an auditor's tax deed was issued to Box Elder county. On December 4, 1923, the land was levied upon pursuant to a writ of execution issued in an action wherein the Columbia Trust Company secured a judgment against A. J. Nielson. The Columbia Trust Company purchased the property on December 29, 1923, at the execution sale. On January 7, 1924, pursuant to a resolution of the board of county commissioners of Box Elder county, the property was conveyed by quitclaim deed by Box Elder county to the Columbia Trust Company. On August 29, 1925, the sheriff of Box Elder county executed and delivered a sheriff's deed conveying the property to the Columbia Trust Company.

The learned trial judge found that the title to the land involved in this controversy vested in Box Elder county, because the taxes for the year 1914 were not paid, and because of the proceedings had as directed by law for the sale of property upon which taxes have not been paid. The trial judge further found that conveyance of the land to the Columbia Trust Company by Box Elder county was a nullity because no notice of such sale was published. Thus, according to the view of the trial court, the title to the land is vested in Box Elder county, and not in any of the parties to this suit.

We are of the opinion that the trial court was in error in so holding. The county is not a party to this suit. It has received and retains the taxes which were levied against the premises and which were paid by the Columbia Trust Company to Box Elder county for the conveyance of the land. Laws of Utah 1921, c. 140, p. 384, provides: "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."

Under the foregoing provision the county commissioners of Box Elder county were authorized to permit the Columbia Trust Company to redeem the land in controversy by paying the taxes owing thereon. The Columbia Trust Company was not a stranger to the title when it received the deed to the property from Box Elder county pursuant to resolution of the county commissioners. Subject to the title of the county for the unpaid taxes, the Columbia Trust Company held a recorded deed from A. J. Nielson and his wife. It had also purchased the property at execution sale, although the sheriff's deed had not then been executed. Such a state of facts precludes the conclusion that the title to the land is in Box Elder county, especially in view of the fact that the county is making no claim to the property.

The major parts of the briefs of both the appellant and the respondents are devoted to a discussion of the question of whether or not the deed executed by Box Elder county passed an indefeasible title to the plaintiff. The defendants contend that plaintiff's title is defective because no notice of the sale of the property was published. The plaintiff contends that the county commissioners may sell property, the title to which is in the county, without a publication of notice of such sale. The record before us for review presents a question for determination, other than that of the publication of notice of sale, which we deem of controlling importance. At the time the plaintiff paid the taxes owing and received the deed for the property, it held a recorded title to the property. The title so held by the plaintiff was, by the terms of the deed, a conveyance given to secure payment of any indebtedness owing, or to become owing, by the grantors or either of them to the grantee. The law applicable to such a state of facts is thus stated in 41 C. J. p. 494, § 417.

"The general rule is that a mortgagee cannot make such a purchase of the property covered by his mortgage, at a tax sale, as will cut off the title of the mortgagor or the rights of other parties beneficially interested, although he thereby acquired an additional lien for the amount paid; and the same rule is applied to the mortgagee's grantee or assignee of the mortgage, or to any third person who acquires a tax title by conspiracy with the mortgagee. It has been held, however, that a mortgagee may acquire a valid tax title where he is under no legal or contractual obligation to pay the taxes, on the mortgagor's failure to do so, and that a mortgagee not in possession is not bound to pay the taxes and does not hold a fiduciary relation to the mortgagor such as to disqualify him from buying at a tax sale, although it is otherwise if he is in possession and receiving the rents and profits."

The plaintiff has never been in possession of the property. It has not...