Eastman v. Gurrey

• Decision Date: 22 June 1897
• Docket Number: 805
• Citation: 15 Utah 410,49 P. 310
• Court: Utah Supreme Court
• Parties: MAY EASTMAN, RESPONDENT, v. A. R. GURREY, APPELLANT

49 P. 310

15 Utah 410

MAY EASTMAN, RESPONDENT, v. A. R. GURREY, APPELLANT

No. 805

Supreme Court of Utah

June 22, 1897

Appeal from the Third district court, Salt Lake county. A. N Cherry, Judge.

Ejectment by May Eastman against A. R. Gurrey. From a judgment for plaintiff, defendant appeals.

Judgment of the court set aside and the complaint dismissed with costs.

T Ellis Browne, and Bennett, Harkness, Howat & Bradley, for appellant.

If there was no definite parcel of land assessed, there was no lien, and if there was no lien, there could be no legal sale--see abst. p. 19. Black on Tax Titles (Ed. 1888) § 38; Cooley on Taxation, p. 282, Ed. 1876; Blackwell on Tax Titles, 4th Ed. p 124 et seq.; Lyon v. Goddard, 22 Kan. 389; Hubbell v. Walden, Hill & Denio, 139; Kelsey v. Abbott, 13 Cal. 619; Roberts v. Chan Tin Pen, 23 Cal. 267.

The correctness and certainty of the assessment is the foundation on which rest all subsequent proceedings. The premises assessed must be definitely and distinctly described. A correct notice of sale, return, certificate, and deed will not remedy the defect. Olsen v. Bagley, 10 Utah 492 and cases cited; Greene v. Lunt, 58 Me. 518, 533; Griffin v. Creppin, 60 Me. 270; Yenda v. Wheeler, 9 Tex. 408; Rougelot v. Quick, 34 La. 123; Wilkins v. Tourtelot, 28 Kan. 825; Kelsey v. Abbott, 13 Cal. 619.

The title to be acquired under statutes authorizing the sale of land for taxes must be regarded as stricti juris, and whoever sets up a tax title must show that all the requirements of the law have been complied with. Black on Tax Titles (Ed. 1888) § 48, 49; Ferris v. Coover, 10 Cal. 633; Kelsey v. Abbott, 13 Cal. 619; Hubbell v. Welden, Hill & Denio 139; Mill kan v. Patterson, 91 Ind. 515; Cruger v. Dougherty, 43 N.Y. 107, 121; Seymour v. Peters, 67 Mich. 415; Houghton Co. v. Auditor Genl., 41 Mich. 28; Marx v. Hawthorn, 148 U.S. 172; Parker v. Overman, 18 How. 137; Williams v. Peyton, 4 Wheat. 77.

See note to same case Lawyers' Ed. Book 4, p. 518.

Again the notice embraces more land than is assessed and is not restricted to lands upon which the taxes are unpaid. Black Tax Titles (Ed. 1888) sec. 82; Prinble v. Campbell, 9 Minn. p. 204 Sub. Ed.; Rougelot v. Quick, 34 La. 123.

And where it states that the whole lot upon which the tax was assessed was sold, and does not state that it was necessary to sell the whole, the deed was void. Brookings v. Woodin, 74 Me. 222; Lovejoy v. Lunt, 48 Me. 377; Allen v. Morse, 72 Me. 502.

If the statute directs sale of the smallest quantity, a deed which recites a sale of the premises to the grantee, who was the highest bidder, is void and conveys no title. Carpenter v. Gann, 51 Cal. 193; French v. Edwards, 13 Wall. 511.

And if the recitals do not show an offer to sell such fractional part as may be necessary to pay the tax and charges, the deed will not be efficacious to pass title. Wiggin v. Temple, 73 Me. 382; Whitmore v. Learned, 70 Me. 249; French v. Patterson, 61 Me. 209; Allen v. Morse, 72 Me. 502.

The purchaser under a tax sale, in order to recover the land, must show the regularity of all the proceedings. Bucknall v. Story, 36 Cal. 67-74; Marx v. Hawthorne, 148 U.S. 172.

A sale for more than was due, renders the sale void. Hamer v. Weber City, 11 Utah 1; Treadwell v. Patterson, 51 Cal. 637; Harper v. Rowe, 53 Cal. 233; Axtell v. Gerlach, 67 Cal. 483; Boston Tunnel Co. v. McKenzie, Id. 485; Bucknell v. Story, 36 Cal. 67.

C. S. Varian and Moyle, Zane & Costigan, for respondent:

"In listing the land it must be described with particularity sufficient to afford the owner the means of identification and not to mislead him." Cooley on Tax, 282, Woodside v. Wilson, 32 Pa. St. 55, see also Blackwell Tax Titles, 5th ed., Vol. I, sec. 223 and 227, Desty Taxation, Vol. I, p. 567.

"An assessment is void only when it wholly fails to lead to identification." Blackwell, Vol. I, sec. 223, p. 210, Glass v. Gilbert, 58 Pa. St. 290. The rule is that in this class of cases the equitable defense must be pleaded, and just as fully, with all essential averments, as if a bill in equity, and the equity must be of such character that it may be ripened by decree into legal right to the premises. Estrada v. Murphy, 19 Cal. 248; Lestrade v. Barth, 19 Cal. 671; Blum v. Robertson, 24 Cal. 142; Cadiz v. Majors, 33 Cal. 288; Swazey v. Adair, 88 Cal. 182; Gibson v. Choteau, 13 Wall. 103; Sedgwick & W. Trial Title, sec. 486-7.

MINER, J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

This action in ejectment was brought to recover possession of property in Salt Lake City, described in the complaint as commencing 5 rods north of the southwest corner of lot 5, block 33, plat B, Salt Lake City survey; thence north 4 1/2 rods; thence east 10 rods; thence south 4 1/2 rods; thence west 10 rods, to the place of beginning,--which plaintiff alleges she is the owner of, and entitled to the possession thereof, together with rents and damages. The answer denies all the allegations of the complaint; denies title in the plaintiff; and claims title and right of possession in defendant. The plaintiff bases her right and title to the land in question upon a tax deed executed by the recorder of the city of Salt Lake to Olivia Widdeborg, August 30, 1892, for taxes, and special assessments for water mains, assessed upon the property for 1889, amounting to $ 49. The sale was made to P. O. Perkins, August 27, 1890, for $ 59.21, and by him the certificate of sale was, on October 6, 1890, assigned to Olivia Widdeborg, who obtained a deed, and conveyed the premises to plaintiff. The property is valued at $ 5,000. The property assessed to the defendant, A. R. Gurrey, and which was sold and conveyed by tax deed, was described in the assessment roll as follows: "74 1/4 x 165, lot 5, block 33, plat B;" and this appears to be the only description. The plat of the block required by ordinance to be kept shows the lot to be 10x20 rods, and defendant's land is marked 4 1/2x10. The assessment notice does not refer to the plat, and the points of the compass are not designated on the plat. Nor is the block, including the lot, given in the plat. The property conveyed by the tax deed is described as beginning 5 rods north of the southeast corner of lot 5, block 33, plat B, Salt Lake City survey; running thence west 10 rods, north 4 1/2 rods, east 10 rods, south 4 1/2 rods, to the place of beginning. The notice of sale described the property to be sold as part of lot 5, block 33, plat B, Salt Lake City survey; beginning 5 rods north of the southeast corner of said lot 5, running thence west 10 rods; thence north 5 rods; thence east 10 rods; thence south 5 rods, to the place of beginning; and that the assessor would sell the same or so much thereof as would be necessary to pay the tax of $ 49 and costs at public auction. This notice was published in the newspapers. It does not appear what the costs of the sale amounted to. The property sold was sold for $ 59.20, but it does not appear what became of the sum paid over and above the amount of the taxes assessed at $ 49.

The statute (section 2013, p. 51, Sess. Laws 1890) provides that, in assessing real estate, it should be referred to with reasonable certainty as to locality and quantity. In cities it shall be sufficient to give the number of the lot, block, plat, etc. In describing the land assessed as 74 1/4x165, lot 5, block 33, plat B, without any other description, when lot 5 had an area of 10 by 20 rods, the assessor was in error. This description was too indefinite and uncertain to amount to reasonable certainty. If the whole lot is assessed, it is sufficient to describe it by number and block; but, when only a portion of the lot is assessed, it should be described with reasonable certainty, so that the owner will know what land is assessed. The plat in evidence only gives a portion of the block, and the points of the compass are not designated thereon. Nor does the assessment notice refer to the plat in any way to identify it. These are material defects. Neither the purchaser nor owner would know from this description where the land assessed was located. It could not be ascertained from the assessor's roll whether the land assessed was on the north, south, east, west, or middle of the lot. A deed issued on sale of the property with this description would be defective. Olsen v. Bagley, 10 Utah 492, 37 P. 739, and cases cited; Labs v. Cooper, 107 Cal. 656, 40 P. 1042.

The notice of sale described a different piece of property from that named in the assessment roll, and more than was owned by the defendant. This notice included 5x10 rods, instead of 74 1/4x165 feet, as described in the assessment roll. The tax deed described as sold 4 1/2x10 rods,--less land than was described in the notice of sale, and more than was described in the assessment roll. The plat designated as belonging to the defendant a different piece of land from that assessed in the assessment roll. In Stout v. Mastin 139 U.S. 151, 35 L.Ed. 121, 11 S.Ct. 519, it is held that if the description in a deed of land sold for nonpayment of taxes departs from the description contained in the assessment roll, and the prior tax proceedings upon which it is based, it is void; that each act in the tax proceedings must substantially correspond with its immediate antecedent. The purchaser is entitled to a deed to correspond to the notice of sale, and to the description in the assessment roll. If there was no definite parcel of the land assessed, there was no lien; and, if there was no lien, there could be no legal sale. In this case the description in the deed did not correspond with all its immediate antecedents. The recitals in the deed were not true, as it did not correctly describe the land...