Conway v. Mosher, Civil 4169

• Decision Date: 15 April 1940
• Docket Number: Civil 4169
• Citation: 55 Ariz. 307,101 P.2d 209
• Parties: E. POWER CONWAY, Appellant, v. HATTIE L. MOSHER, a Widow; COIT I. HUGHES and HATTRUDE B. HUGHES, Wife of COIT I. HUGHES, Appellees
• Court: Arizona Supreme Court

101 P.2d 209

55 Ariz. 307

E. POWER CONWAY, Appellant, v. HATTIE L. MOSHER, a Widow; COIT I. HUGHES and HATTRUDE B. HUGHES, Wife of COIT I. HUGHES, Appellees

Civil No. 4169

Supreme Court of Arizona

April 15, 1940

APPEAL from a judgment of the Superior Court of the County of Maricopa. Wm. G. Hall, Judge. Judgment affirmed.

Messrs Gust, Rosenfeld, Divelbess, Robinette & Coolidge, for Appellant.

Mr. E E. Selden, for Appellees.

OPINION

ROSS, C.J.

This is an action by plaintiff, E. Power Conway, claiming to be the owner of lots 6 and 7, block 14, East Evergreen Addition to the City of Phoenix, Maricopa county, to have a tax deed thereof issued by the county treasurer to Coit I. Hughes declared invalid and to have plaintiff's title to said lots declared free and clear of all encumbrances, except as to any lien thereon held by defendants on account of taxes paid for tax deed and tax liens in favor of the state for state and county taxes. As to these taxes and tax liens plaintiff offers to pay them when the amount is determined by the court.

In a trial without a jury, judgment went for defendants and plaintiff has appealed, assigning several reasons why such judgment should be reversed and his prayer granted. His first point is that in another proceeding between the same parties concerning the title to lots 6 and 7, it was determined, in effect, that Hughes had no title but only liens for the taxes he had paid for tax deed. The facts relied upon to support this proposition are not in dispute and are stated as follows:

On November 20, 1935, the plaintiff became the owner of said lots by purchase at a sale thereof to satisfy paving improvement liens assessed against them, and received a deed for each lot from the city treasurer of the city of Phoenix.

On February 8, 1936, plaintiff Conway brought an action against the former owner, Hattie L. Mosher, and a number of her creditors, including Coit I. Hughes and his wife Hattrude B. Hughes, Maricopa county, and the city of Phoenix, to quiet his title to the lots. Mosher, Coit I. Hughes and his wife joined in an answer denying that plaintiff was the owner of the lots and alleging the owner to be Hattie L. Mosher. Maricopa county in its answer set forth that the county and state taxes on the lots were delinquent for the years 1927 to and including 1935; that in July, 1932, the county treasurer sold the lots to the state for the taxes for the years 1927 to 1930, both inclusive, and issued to the state, the buyer. certificates of purchase.

On December 22, 1936, the court rendered its judgment quieting plaintiff's title against all of the defendants except Maricopa county and the city of Phoenix. As to Maricopa county, it was decreed that it has "a lien for unpaid taxes against the above described property, as follows:" (Here are enumerated the taxes for 1931, 1932, 1933, 1934, 1935 and 1936.) No mention is made in the judgment of tax certificates or tax liens for the years 1927-1930.

On August 20, 1937, defendant Coit I. Hughes bought an assignment from the state of Arizona of its certificate of purchase of lot 7, and on August 27, 1937, he bought an assignment of its certificate of purchase for lot 6 from the state, and thereafter, on February 23, 1938, he received from the county treasurer a tax deed of said lots.

Thus it is seen that whatever title Hughes has to the lots he obtained by virtue of the tax deed dated February 23, 1938. Plaintiff claims that such title is not good for several reasons, the first being that the judgment in the action to quiet title between Conway and Mosher (see Mosher v. Conway, 51 Ariz. 275, 76 P.2d 231) conclusively adjudicated that the two certificates of purchase issued to the state by the county treasurer for taxes for the years 1927-1930, upon which the defendant's tax deed was issued, were void and of no effect. The basis for this claim is that Maricopa county in the action to quiet title submitted to the court in its answer the validity of the two tax certificates upon which defendant depends for his title along with the claim of tax liens on said property for the years 1931-1936, and that the court's judgment preserved the latter liens but ignored the certificates of purchase and thereby adjudged them invalid and of no effect.

While delinquent taxes when collected are apportioned between the state and county and to the several funds for which they are levied and collected, the statutory liens on the property assessed run in favor of the state. Section 15, chapter 103, Laws of 1931, provides:

"Taxes upon real estate, if unpaid, shall become delinquent on the first Monday in November and the first Monday in May of each year, and the county treasurer shall enforce the lien of the state upon such real estate, as provided herein. Failure to properly return the delinquent list shall not affect the validity of the assessment and levy of taxes, nor the sale by which the collection may be enforced, nor the lien of the state on such delinquent real estate for the taxes unpaid."

There is no expression in the revenue statutes that recognizes a lien for taxes in favor of a county. While the law has selected a county officer to look after and collect the state and county taxes, to wit, the county treasurer, it has chosen to have him act in doing so as the agent of the state. He is required before he enters upon his duties as the collector to execute to the state a bond in such penal sum as fixed by the board of supervisors. Sec. 3111, Rev. Code 1928. When the treasurer has offered any real property for sale to satisfy the taxes against it and receives no offer, it is made

"his duty to strike off to the state of Arizona the property remaining unsold for the amount of such taxes, interest, penalties, and charges, and shall issue to the state of Arizona a certificate of purchase as provided in other cases." Sec.' 20, chap. 103, supra.

The certificate of purchase issued to the state is in lieu of or a continuance in another form of the state's tax lien. The county treasurer is authorized to sell and transfer the state's certificate to any purchaser who will pay all the taxes, etc. (sec. 31, Id.), and thereafter to issue to such purchaser a deed to the property on his compliance with the law as to notice, etc. Sec. 49, Id.

It seems to us that before the court could adjudicate the state's right to a lien or the validity of the certificates of purchase of the lots, it would have to have the state before it as a party. The statute providing the remedy for quieting one's title to real property states that the remedy may be invoked against "any person, or the state of Arizona, when such person or the state claims any estate or interest, adverse to the party bringing the action." Sec. 4356, Revised Code of 1928. The state, and not the county, if there is no redemption from he taxes as provided in sections 42, 43, 44 and 45, chapter 103, supra, becomes the owner. It is quite clear that the action against Maricopa county and others, supra, to quiet title did not involve the state's interests in the lots, and the judgment therein does not estop the state or its assignee from asserting the validity of the certificates of purchase or the state's tax lien. It is next contended by plaintiff that the description of the lots on the tax roll and in the proceedings thereafter to collect the delinquent taxes was wholly insufficient to deprive plaintiff of his right of redemption. The description appears on the tax roll as "the following premises, situate in the County of Maricopa, State of Arizona, to wit, East Evergreen, Lot 6, Block 14." Lot 7 has the same description. These descriptions were used in all subsequent proceedings up to and including the deed from the state to Hughes. It seems to be agreed that the description standing alone is insufficient. The defendant contends, however, that it is sufficient to allow the introduction of evidence to show that these two lots are the only two lots of the number and description in Maricopa county. The plaintiff takes that opposite position and insists that the description is so defective as not to permit extrinsic evidence to identify the lots. The trial court accepted defendant's contention as correct and took evidence in support of the description. The evidence was to the effect that there was only one East Evergreen in Maricopa County; that a map or plat thereof was on file in the office of the county recorder of such county and that on such map or plat there were lots numbered 6 and 7 in block 14. Such map shows that East Evergreen was quite a good-sized piece of land that had been subdivided into blocks and lots. The question is could the plaintiff from such description readily identify the property as his lots 6 and 7, block 14, in East Evergreen Addition to the city of Phoenix? Cooley on Taxation, third edition, page 740, says:

"In listing the land (for taxation) it must be described with particularity sufficient to afford the owner the means of identification, and not to mislead him." See, also, Mountain Club v. Pinney, 67 Cal.App. 225, 227 P. 630. After and before plaintiff acquired title to the lots they were listed for state and county taxes as indicated. As such owner he was charged with notice of how his property was described in the assessments. It was under such description on the tax roll that Maricopa county claimed a lien on the lots in its answer to his action to quiet title. It seems to us the court's finding, that the description of the lots in the proceedings to collect the delinquent taxes was sufficient to afford plaintiff the means easily to identify such lots is well supported both by the law and the evidence.

The law (chap. 103, Laws of 1931) makes it the duty of the county...