Fivas v. Petersen

• Decision Date: 16 August 1956
• Docket Number: No. 8470,8470
• Citation: 5 Utah 2d 280,300 P.2d 635
• Parties: d 280 R. Jerry FIVAS and Alaire J. Fivas, Plaintiffs and Respondents, v. Joseph F. PETERSEN and Florence E. Petersen, et al., Defendants and Appellants.
• Court: Utah Supreme Court

Page 635

300 P.2d 635

5 Utah 2d 280

R. Jerry FIVAS and Alaire J. Fivas, Plaintiffs and Respondents, v. Joseph F. PETERSEN and Florence E. Petersen, et al.,

Defendants and Appellants.

No. 8470.

Supreme Court of Utah.

Aug. 16, 1956.

Cyrus G. Gatrell, Salt Lake City, for appellants.

James W. Beless, Jr., Lewis S. Livingston, Salt Lake City, for respondents.

CROCKETT, Justice.

Plaintiffs brought action to quiet title to land, based on a tax deed purchased from Salt Lake County. Defendants, owners of the fee, resisted unsuccessfully. From adverse judgment they appeal.

Defendants rely on several points for reversal of the trial court's judgment quieting the plaintiffs' title under the tax deed. The principal one, which we find to be determinative, is that the treasurer failed to give the notices to the taxpayer required by sections 59-10-9 and 59-10-10, U.C.A.1953 quoted below.

The action was tried in the lower court entirely on documentary evidence consisting of a certified copy of the tax sale record, the auditor's tax deed, requests for and admissions of fact, interrogatories and answers thereto.

The defendants, Joseph F. Petersen and Florence E. Petersen, were the grantees under a warranty deed which was recorded March 30, 1948. It is admitted that at the top of the deed was a recorder's stamp indicating that the deed was recorded at the request of J. F. Petersen, Riverton, Utah, and that the recorder's records also show that the deed, after recording, was mailed to J. F. Petersen, Riverton, Utah. The assessor, in using the recorder's records to make up the assessment roll failed to list thereon the Riverton or any other address for the defendants. As a result no valuation notice or tax notice was sent to the defendants and they did not pay taxes on the property.

After nonpayment of taxes for the year 1949, the property was advertised and sold at preliminary tax sale to the county, and after nonpayment of taxes for the years 1949, 1950, 1951, 1952 and 1953, the property was sold by the county to plaintiffs for taxes, penalties and interest of the above mentioned five years.

Our statutory provisions relating to the mailing of notice are:

'59-10-9. Mailing valuation notices.--The county treasurer shall furnish to each taxpayer by mail to the address noted on the assessment book, postage prepaid, or leave at his residence or usual place of business, if known, a notice of the kind and valuation of property assessed to him, * * *.'

'59-10-10. Tax notice.--* * * He [the county treasurer] shall proceed to collect taxes and shall furnish to each taxpayer, * * * by mail, postage prepaid, or leave at his residence or usual place of business, if known, anotice of the amount of tax assessed against him, * * *. If the property has been sold for a prior tax within a period of four years and has not been redeemed, the treasurer shall stamp on the notice 'Sold for a prior tax'; * * *.'

The plaintiffs' position is that the above sections are merely directory, or that in any event the qualifying phrase 'if known' would relieve the treasurer of this requirement if he did not know the taxpayer's address or if such address did not appear on the assessment rolls. To support this position the plaintiffs point to some changes which were made in the statute formerly dealing with the duties of another county official, the county assessor. The original section 2546 of the Revised Statutes of 1898 ¹ provided as follows:

'The state board of equalization must prepare and furnish to each county, an assessment book with appropriate headings, in which must be listed by the county assessor of each county, all property within the county, and in which must be specified in separate columns under the appropriate head:

'1. The name of the person to whom the property is assessed, together with his postoffice address, giving the street and number or the number of lot and block so far as possible to obtain same from taxpayers' statements, county records, or otherwise.

'2. * * *.'

The above section went on to enumerate 15 further specifications as to what must be contained in the assessment book. The 1931 Legislature eliminated all those detailed specifications, substituting the more general requirement that:

'The state tax commission must prepare and furnish to each county an assessment book with appropriate headings, in which must be listed by the county assessor of each county all property within the county.' Section 59-5-48, Utah Code Annotated 1953.

The plaintiffs contend that the 1931 amendment indicates a basic change in legislative policy which was intended to shift the burden to the taxpayer to ascertain and pay his taxes when due, whether notice is mailed to him or not.

In considering the above contention, it is necessary to keep in mind the fundamental principles which have been established since time immemorial underlying adjudications on tax titles. The forfeiture of one's property for the nonpayment of taxes has always been regarded as a harsh procedure, which may work great hardships on property owners. An awareness of this fact invariably pervades the decisions in such cases, with the result that, in the interpretation and application of statutory requirements antecedent to forfeiture of property, they are construed in favor of the taxpayer ² and against the taxing authority, ³ and are strictissimi juris. ⁴ These rules are basic to taxation law.

The 1931 amendment, upon which plaintiffs place reliance was enacted during the depths of an economic depression when taxes were hard to collect. It did eliminate many of the detailed duties of the assessor with respect to the assessment book. However, the fact that such liberalizing statute has gone far does not indicate a legislative intent that all semblance of regularity in the tax procedures may be abandoned, nor that all requirements are now directory and not mandatory. To the contrary, it would seem that the proceedings, having been cut to bare bones of necessity, those remaining should be adhered to, at the very least, with reasonable diligence. It should also be kept in mind that the requirements of the particular statutes here under consideration relating to duties of the treasurer, sections 59-10-9 and 10, have never been substantially changed.

In determining whether the statutory requirements of taxing procedure have been met, it is important to remember that it is the county as an entity which constitutes the taxing power, and that it carries on the taxing procedure through its functioning officials. The recorder, by placing a deed on record, the assessor, by carrying the information from the deed to the assessment rolls, and the treasurer, by sending out the notices and collecting the taxes, are all performing duties upon which part of the taxing process depends. If they collectively fail to perform the duties to the taxpayer and the public required by the statutes, that failure is chargeable to the county as the taxing entity.

The requirements in the statutes of duties to be performed in the taxing process contemplate that such duties shall be performed with reasonable care and diligence. The discrepancy in name (the warranty deed showed that the grantees were Joseph F. Petersen and Florence E. Petersen while the recorder's records indicated that the deed was recorded at the request of J. F. Petersen, Riverton, Utah) might have some materiality if it had anything whatsoever to do with the failure to receive notice; but inasmuch as no address at all was placed on the assessment roll, and no attempt whatever was made to mail the notices, that discrepancy is not here significant.

The failure of the assessor to place any address upon the assessment roll, when the mailing address appeared upon the very deed from which the county obtained the information to tax the property against the defendants, falls short of performance of his duty. We are not here concerned with what the situation might be if the taxpayer's address were not upon the deed.

In regard to the duty of the treasurer, it seems hardly credible that the requirement to furnish notice to the taxpayer at his residence or usual place of business 'if known' was intended to be interpreted as narrowly as the plaintiffs would suggest; that is, if the treasurer does not know the address of his own knowledge, or see it on the assessment roll, that he need make no further effort and thus excuse himself from mailing the notices, as was done here. It is obvious that he cannot carry in his head the addresses of any appreciable number of taxpayers, and that he must refer to some records in order to perform this duty. That being so, it would seem proper that he make some reasonable effort to ascertain the address by looking at the record which would be most likely to disclose to him the necessary information: the record in the recorder's office. It seems unreasonable and futile, so far as the taxpayer is concerned, to permit the treasurer to simply look at the assessment roll, which is devoid of any address; then allow him to shut his eyes insofar as any examination of the county records is concerned, assume that he does not know the address, and consider this a fulfillment of his duty. This would not comport with the standard of care which should be required.

The holding of the trial court leads one to ask, what has happened to the ubiquitous 'ordinary prudent man' so frequently encountered and so useful in other areas of the law? It seems everywhere axiomatic that one is charged with the duty of reasonable care and inquiry and is deemed to know, not only what he in fact knows, but whatever reasonable diligence in inquiry would reveal to him. There appears to be no reason why public officials should be allowed to be both blind and dumb. They are sometimes so represented as the butt of jokes and jibes but this facetious pastime by persons who are blithely unaware that they unwittingly may be furnishing excuses...