Consolidated Motors, Inc. v. Skousen

• Decision Date: 13 January 1941
• Docket Number: Civil 4264
• Citation: Consolidated Motors, Inc. v. Skousen, 56 Ariz. 481, 109 P.2d 41 (Ariz. 1941)
• Parties: CONSOLIDATED MOTORS, INC., a Corporation, Appellant, v. D. P. SKOUSEN; FERNE SKOUSEN, His Wife; HELEN STREITZ; HATTIE MOSHER; HATTIE MOSHER, Surviving Trustee Under the Last Will and Testament of JULIA A. LOUNT, Deceased; H. B. HUGHES; COIT I. HUGHES; COUNTY OF MARICOPA, a Municipal Corporation; CITY OF PHOENIX, a Municipal Corporation, Appellees
• Court: Arizona Supreme Court

109 P.2d 41

56 Ariz. 481

CONSOLIDATED MOTORS, INC., a Corporation, Appellant, v. D. P. SKOUSEN; FERNE SKOUSEN, His Wife; HELEN STREITZ; HATTIE MOSHER; HATTIE MOSHER, Surviving Trustee Under the Last Will and Testament of JULIA A. LOUNT, Deceased; H. B. HUGHES; COIT I. HUGHES; COUNTY OF MARICOPA, a Municipal Corporation; CITY OF PHOENIX, a Municipal Corporation, Appellees

Civil No. 4264

Supreme Court of Arizona

January 13, 1941

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and case remanded with instructions.

Messrs Snell & Strouss and Mr. Mark Wilmer, for Appellant.

Mr. E R. Thurman, for Appellees D. P. Skousen, Ferne Skousen and Helen Streitz.

Mr. E E. Selden, for Appellees Hattie Mosher, Hattie Mosher surviving trustee, H. B. Hughes and Coit I. Hughes.

OPINION

LOCKWOOD, C.J.

This is an action by Consolidated Motors Company, Inc., a corporation hereinafter called plaintiff, against D. P. Skousen and various other parties, hereinafter called defendants, to quiet title to what is described in the complaint as lot 7 and the north one-half of lot 8, block 1 of Churchill's Addition to the City of Phoenix, Maricopa County, Arizona, the property also being described by metes and bounds. The principal defendants are D. P. Skousen and his wife, who claim to be the owners of the premises by reason of a certain foreclosure of mortgage and a tender of redemption of the property from taxes. Plaintiff relies for its title on two tax deeds, and the real question for our consideration is whether, in view of all the facts, the latter are valid. The trial court rendered judgment that plaintiff take nothing by its complaint and that the action be dismissed and defendants recover their costs.

The undisputed facts are as follows: The taxes on what was described in the records of the county assessor of Maricopa county as lots 7 and 8, block 1, Churchill's Addition to the City of Phoenix and which were assessed to one James Dean Collins, were, in September, 1931, delinquent for the last half of 1927, the last half of 1928, and the entire years of 1929 and 1930. The county attempted to sell them for these delinquencies, under the provisions of chapter 103 of the Session Laws of 1931, and certificates of sale therefor were issued to the state of Arizona on July 11, 1932. The certificate covering lot 8 was assigned to W. R. Wayland and Fred G. Holmes on July 30, 1938. The south half of this lot was redeemed by the record owner thereof, James Dean Collins, on July 30, 1938. At some time prior to December 23, 1938, Wayland and Holmes applied for a treasurer's deed to the north one-half of lot 8, which was issued to them on May 16, 1939. They then conveyed this north one-half to plaintiff. The certificate of purchase to lot 7 was assigned by the state to Dell E. Webb on May 19, 1939, and prior to June 2 of that year he applied for a treasurer's deed. On June 21, defendant Skousen tendered to the county treasurer the amount of taxes then due on lot 7, without any penalties or interest added thereto, which tender was refused by the treasurer. No further tender being made, a treasurer's deed was issued to Webb on July 5, and on September 12 he conveyed lot 7 to plaintiff.

There are four principal questions affecting the validity of plaintiff's title, and they may be stated as follows: (a) Was the tax sale of July 11, 1932, to the state of Arizona made in accordance with law? (b) Was the description of the property in the various instruments affecting the tax title sufficient? (c) Was the tender made by Skousen for the redemption of the north one-half of lot 8 a valid one? and (d) Did the treasurer have the right to issue a deed to Wayland and Holmes for one-half of lot 8 when the tax sale embraced the entire lot? We will consider these questions in their order.

We consider first the validity of the tax sale. It was made under the provisions of chapter 103, supra, and it is contended by defendants that the proof offered by plaintiff in the present action failed to show affirmatively certain jurisdictional prerequisites of a valid tax sale, in particular that it was not shown the following provision of section 18 of the chapter was complied with:

"... The said treasurer shall send, by letter mail, to the owner of each parcel of said property, if the owner be known, at his last known address, a copy of said notice of proposed sale...."

The testimony on this point, in substance, was that it was the custom of the treasurer's office to make an original and carbon copy of the notice of sale required by section 18, supra, and mail the original to the reputed owner of the premises at his last-known address, retaining the copy in the files of the office; that there was in such files a carbon copy of the notice of sale marked "James Dean Collins, care Hattie L. Mosher, 415 North First Street" and that the original of said notice was gone, but there was no specific affirmative testimony of anyone that such original had been mailed.

It is the general rule in matters of this kind, where it is the custom of a business office to follow a regular routine, that where it is affirmatively established that part of a routine was followed it is presumed, in the absence of some evidence to the contrary, that the rest was also followed. Backdahl v. Grand Lodge, 46 Minn. 61, 48 N.W. 454; Smith v. F. W. Heitman Co., 44 Tex. Civ. App. 358, 98 S.W. 1074. We think this is particularly applicable to matters such as the mailing of routine letters in an office where a very large number of such letters are customarily mailed in the due course of its business, and that proof of the custom and the fact that a carbon copy was found without the original in the place and under the circumstances where it would have been found, if the original had been mailed, is sufficient, in the absence of evidence to the contrary, to support a finding that the original had been properly mailed. But even if the facts above stated are not sufficient evidence to establish the mailing of the letter, we think there is another principle applicable to the situation. It is the general and almost universally accepted rule that where a public officer is required as a condition precedent to the performance of an official act to do a certain thing, the presumption is that he has done it. 22 C.J. 131 and cases cited.

Defendants admit this general rule but claim that it does not apply to proceedings ex parte such as tax sales. Their position is supported by the greater number of authorities. Ronkendorff v. Taylor's Lessee, 4 Pet. 349, 7 L.Ed. 882; Keane v. Cannovan, 21 Cal. 291, 82 Am. Dec. 738; Huey v. Van Wie, 23 Wis. 613. This court, however, is committed to a contrary rule. In the case of Wallapai Mining Co. v. Territory, 9 Ariz. 373, 84 P. 85, 87, an action was brought under the then existing statute for the purpose of collecting delinquent taxes on certain property. Therein we said:

"... It is further claimed that there is no evidence that the delinquent lists were properly returned and certified, or that the assessment was ever equalized by the board of supervisors, or that the law was complied with in other respects.... As to the second objection, in the absence of evidence to the contrary, the legal presumption attaches that the officers intrusted with those duties duly performed them."

It is true that the method for the collection of delinquent taxes at that time differed in many respects from that prescribed by chapter 103, supra, but the principle is the same. In the very recent case of Conway v. Mosher, 55 Ariz. 467, 103 P.2d 465, 466, the sale of property under chapter 103, supra, was involved, and it was contended the record failed to show that certain prerequisites of the chapter were complied with in the making of the sale. We said:

"... The record here does not show on what day the sale was made but we will assume the county treasurer performed his duty and did not sell the property to the state on the first day of the commencement of sales but on some subsequent day."

The attitude of the courts and legislatures towards tax sales has changed considerably of recent years. Under the early common law every presumption was against the validity of a tax sale and it was necessary for one claiming under such a sale to prove to the uttermost detail a compliance with the provisions of the statute. The effect of this was to make tax titles almost impossible to establish, and as a result the state was seriously hampered in the collection of the taxes due it. Many legislatures, therefore, including that of Arizona, have passed statutes relaxing the strict requirements of the common law in regard to proof of the validity of tax sales, and the modern tendency of the courts is to regard many provisions heretofore considered to be jurisdictional as merely directory. We are of the opinion that this tendency is a salutary one. The payment of taxes is absolutely essential to the maintenance of government, and it is and always has been recognized that it is the duty of every citizen to pay his fair share of such taxes, the only necessary limitations, in the absence of specific constitutional provisions, being that those in like circumstances shall bear like burdens, and that a reasonable opportunity shall be given to the citizen to be heard at every step imposing the tax burden upon him or his property. With these exceptions the power of the legislature in regard to taxation is practically plenary. We see no reason in either justice or logic why the general rule of evidence that a public officer is presumed to do his duty should not apply in regard to the details in tax proceedings in the...