Day v. Jones

• Citation: 112 Utah 286,187 P.2d 181
• Decision Date: 24 November 1947
• Docket Number: 7062
• Court: Supreme Court of Utah
• Parties: DAY v. JONES et al

187 P.2d 181

112 Utah 286

DAY v. JONES et al

No. 7062

Supreme Court of Utah

November 24, 1947

Appeal From District Court, Fifth District, Millard County; Will L Hoyt, Judge

Action by Carl Nelson Day against J. George Jones, Jr., his wife and Millard County to quiet title to a tract of land, in which defendants Jones filed a counterclaim for the value of improvements placed on the land by them. From a portion of a judgment for plaintiff, defendants Jones appeal.

Affirmed.

Cline Wilson & Cline, of Milford, for appellants.

C Nelson Day, pro se.

McDONOUGH C. J., and PRATT, WADE and WOLFE, JJ., concur.

OPINION

LATIMER, Justice.

Appeal by defendants J. George Jones Jr. and wife from a portion of a decree entered in this cause by the District Court of the Fifth Judicial District quieting title in the plaintiff and against the defendants to a tract of farm land in Millard County. The county and all unknown parties defendant defaulted. Only the two appealing defendants resisted the action. They filed an answer denying plaintiff's title, and later an amended answer alleging that they had purchased the land in dispute from Millard County and received from it a deed of conveyance and that the defendant J. George Jones, Jr. is the legal owner of the premises and entitled to the possession thereof. Appellants also counterclaimed for the value of improvements they had placed upon the land, in the event that the question of title should be decided against them.

There is little dispute as to the facts. The plaintiff acquired title to the land in 1940 by deed from the former owner. At that time the land was fenced on three sides; about 30 acres had been cleared and cultivated in 1926 but not thereafter, and 50 acres was in its native state with a growth of sagebrush thereon. The general taxes assessed on the land for the years 1938 through 1943 became delinquent and were never paid by the plaintiff. A certificate of sale was issued to Millard County by the county treasurer for the 1938 delinquent taxes, and there being no redemption the property was sold by the county at the statutory May sale in 1943. The 80 acres in controversy were purchased by defendant J. George Jones, Jr., and Millard County issued its tax deed to Jones therefor.

At the time of plaintiff's acquiring title to the land he went upon it, walked around it, and made plans to cultivate and improve it. The property was farm land, located in a farming community, though the plaintiff did testify it could be used for dwelling purposes. The plaintiff further testified that the general utility of the land was for agricultural purposes, i. e., farming, raising, and producing crops. With regard to the use to which the land was put by the plaintiff during the period of his ownership, and until he entered the military service, the evidence was that the plaintiff did nothing about farming the land because he had no capital with which to carry out his plans; that neither himself nor any one else worked on the land, cleared or plowed it; that he never lived on it, never farmed it, never grazed any cattle on it, and never leased it to any one to farm or graze livestock on; and that the extent of his possession of the land was that he went by it several times, once or twice a year.

Plaintiff was inducted into the service of the U. S. Army on March 4, 1943, entered active duty March 11, 1943, and continued in such service until June 3, 1946, when he was honorably discharged. Plaintiff had no knowledge that his land had been sold by the county for taxes, until about August 1, 1943, at which time he wrote the purchaser, J. George Jones, Jr., a letter advising him that he the plaintiff was still the owner of the land, under the operation of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A.Appendix, § 501 et seq. Defendant ignored this letter, so plaintiff again wrote, in March, 1944, the second letter being returned to him with defendant's notation reading, 'County officials informed me that sale was in good order.'

Some time after this exchange of correspondence between the parties, the defendant Jones commenced making extensive improvements upon the land, which consisted of preparing it for cultivation by clearing, plowing and leveling the ground, and constructing ditches and headgates for irrigating the land. Defendant Jones raised and harvested several crops, harvesting one crop and planting another after this action was commenced. Defendants contended at the trial and before this court that the improvements were made in good faith and that they, as occupying claimants, are entitled to be reimbursed therefor in the event the plaintiff's title be adjudged to be paramount. Plaintiff, on the other hand, maintains that since defendants had notice of his claim before the improvements were made, the latter did not act in good faith in going ahead with the improvements; hence, that the defendant is entitled to nothing for what he added to the land, but instead is indebted to plaintiff for its use.

The appellants, defendants below, assign several errors, which can be grouped under two propositions: (1) The trial court erred in holding that the plaintiff is entitled, under the provisions of the Soldiers' and Sailors' Civil Relief Act, to set aside the sale of his land by the county for taxes; and (2) The trial court erred in deciding that the defendants are not entitled to reimbursement for the value of improvements made upon the land as occupying claimants.

The plaintiff based this right to set aside the tax sale upon the following provisions of the Soldiers' and Sailors' Civil Relief Act:

(1) Section 560, Title 50, War, Appendix, U.S.C.A. referred to in the briefs as section 500 of the Act:

'(1) The provisions of this section shall apply when any taxes or assessments whether general or special (other than taxes on income), whether falling due prior to or during the period of military service, in respect of personal property, money, or credits, or real property owned and occupied for dwelling, professional, business, or agricultural purposes by a person in military service or his dependents at the commencement of his period of military service and still so occupied by his dependents or employees are not paid. (Italics ours.)*****

'(3) When by law such property may be sold or forfeited to enforce the collection of such tax or assessment, such person in military service shall have the right to redeem or commence an action to redeem such property, at any time not later than six months after the termination of such service, but in no case later than six months after the date when this Act ceases to be in force; but this shall not be taken to shorten any period, now or hereafter provided by the laws of any State or Territory for such redemption.' Oct. 6, 1942, Ch. 581, 14(a), 56 Stat. 776.

(2) Section 525, Title 50, War, Appendix, U.S.C.A., referred to in the briefs as section 205 of the Act: 'The period of military service shall not be included in computing any period now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court, board, bureau, commission, department, or other agency of government by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action of the right or privilege to institute such action or proceeding shall have accrued prior to or during the period of such service, nor shall any part of such period which occurs after the date of enactment of the Soldiers' and Sailors' Civil Relief Act Amendments of 1942 [Oct. 6, 1942] be included in computing any period now or hereafter provided by any law for the redemption of real property sold or forfeited to enforce any obligation, tax, or assessment.' (Italics ours.)

In order for plaintiff, respondent herein, to successfully claim the six months' time in which to redeem after the termination of his service, as provided in section 560, the land in question must have been owned and occupied for dwelling, professional, business, or agricultural purposes. The respondent contended at the trial below and the court so found that he was in occupation of the land for agricultural purposes, but with such contention and finding we cannot agree. The respondent testified that he never lived on the land, never farmed it, never grazed any cattle on it, and never leased it to another to graze cattle upon or farm. Instead, his testimony as to 'occupancy' was that he went upon the land immediately after buying it; that he 'assumed control' of it; and that he rode past it two or three times a year to see if any one was trespassing upon it. When he entered military service, his father gratuitously consented to look after the land for him. Such acts do not constitute an 'occupation of the land for agricultural purposes'. This court more than 40 years ago gave its opinion on what constitutes an occupation of realty, in the case of Twiggs v. State Board of Land Com'rs, 27 Utah 241, 246, 75 P. 729, 731. There this court quoted with approval from a decision of the Iowa court: '* * * In the case of Fleming v. Maddox, 30 Iowa 239, the court said: 'A mechanic is in the occupation of his shop when he carries on his business; a merchant, of his store; a lawyer, of his office; a farmer, his farm. It is not necessary to make his occupation complete, that a mechanic should reside in his shop or upon the same lot. He is in occupation because he uses and enjoys it in carrying on his legitimate calling. So with the merchant, the lawyer, the farmer.' 21 Am. & Eng. Encyl. Law, 767.' (Italics ours)

See also Davis v. State, 20 Ga.App. 68, 92 S.E. 550 551; Butte & B. Consol. Mining Co. v....