Hereford v. O'Connor

• Decision Date: 23 February 1898
• Docket Number: Civil 606
• Citation: 52 P. 471,5 Ariz. 258
• Parties: FRANK H. HEREFORD, Plaintiff and Appellant, v. ELIZABETH A. O'CONNOR, Defendant and Appellee
• Court: Arizona Supreme Court

52 P. 471

5 Ariz. 258

FRANK H. HEREFORD, Plaintiff and Appellant, v. ELIZABETH A. O'CONNOR, Defendant and Appellee

Civil No. 606

Supreme Court of Arizona

February 23, 1898

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. J. D. Bethune, Judge. Modified.

The facts are stated in the opinion.

Frank H. Hereford, in persona.

"Admissions whether of law or fact, which have been acted upon by others are conclusive against the party making them." Herman on Estoppel and Res Judicata, pars. 764, 862, 732.

Katzenstein and those claiming under him had a right to redeem the property until notice was served and a deed applied for. There their right and interest ceased. The equitable title then vested in the purchaser. Nothing further could thereafter be done by the delinquent taxpayer. The law takes the right of further action from him and vests it in the treasurer, who, upon a proper showing, makes the transfer of the legal title. The question, under our statutes, of defects or irregularities in the affidavit is only material to the treasurer, to protect him in case the service of notice has not in fact been properly made. It is for the courts, and not for him, to try the question of service. But he would be held responsible for the issuance of the deed without a prima facie showing. Southworth v. Edmunds, 152 Mass. 203 25 N.E. 106, 9 L.R.A. 118.

"Still it is held that if a tax-deed is issued to the purchaser although he omitted to give the proper notice, the deed is not absolutely void, but merely voidable. It will convey the title to the purchaser, but the title is not in the same condition as if the notice had been given. The purchaser now holds it subject to be defeated by subsequent redemption by the owner." Black on Tax Titles, par. 329; Bowers v. Hallock, 71 Iowa 218, 32 N.W. 268; Knudson v. Litchfield, 87 Iowa 111, 54 N.W. 199.

Plaintiff has sufficient title to institute this suit and obtain judgment, while the defendant has no title, according to her own evidence; for the evidence given on her side of the case shows that Katzenstein purchased at a tax-sale, with her knowledge and consent, all her title, and held it in trust for her husband, who is not a party to this suit; and that not only has her time for redemption expired, but that a deed was issued to Katzenstein. And again, defendant's defense tenders no issue on redemption.

In rendering judgment the court did not grant defendant's prayer for relief, confirming to her the contested one half of the mine. The decree was, that the deed was void and for costs, leaving the significant question as to who was the real owner of the one half in a more unsettled state than ever. Under the law the plaintiff should have had judgment, at least for taxes, penalties, and costs. Laws 1893, Act 84, sec. 26, p. 132.

"Costs are recovered in law only by force of statutes, and depend upon the terms of the statute strictly construed."

A witness attending court, and coming from beyond the jurisdiction of the court, is not entitled to fees. "And no litigant has the right to bring witnesses from beyond the limits allowed by the statutes, and by this means subject his adversary to the payment of an unnecessarily heavy bill of costs, though the witnesses themselves may be willing to attend the court." Sapp v. King, 66 Tex. 570, 1 S.W. 466; Mylius v. St. Louis F.S. and W.R. Co., 31 Kan. 232, 1 P. 619; Sherman v. People, 4 Kan. 570; Fish v. Farwell, 33 Ill.App. 242; Stern v. Herren, 101 N.C. 516, 8 S.E. 221; Wooster v. Hill, 44 F. 819; Roundtree v. Renebut, 71 F. 255.

"A husband managing and conducting a suit for his wife is not entitled to witness fees, although he testifies in the case." Freck v. Barclay, 5 Pa. Dist. 587.

"One actually, if not nominally, a party in interest is not entitled to witness fees." Leonard v. Smith, 4 Pa. Dist. R. 249.

"The wife of a party to an action is not entitled to witness fees," the fees being community property. Cole v. Angel, (Tex. Civ. App.) 28 S.W. 93.

Barnes & Martin, for Appellee.

Plaintiff purchased tax-certificates on an undivided one half of the property in question in 1894 for the taxes of 1893. His tax-deed is for the one half, and is of date October 9, 1896. This is his only title.

The deed must conform to section 20 of Act No. 84, Laws of 1893. That law provides that before a purchaser shall be entitled to a tax-deed, he must, thirty days before he applies for a deed, serve upon the owner of the property purchased, or upon the person occupying the property, if said property is occupied, a written notice thereof, and the owner shall have the right to redeem the same before deed issues.

This is the basis of the right to the deed. It is a substantial right of the owner of the property, and cannot be dispensed with. Without that notice a deed may not issue, and is void if it issues. It is void, as a judgment would be without service of summons. It is jurisdictional. It is mandatory. Cooley on Taxation, 335, 339.

That is not all. That there may be no doubt about it, and that the evidence of the service may be preserved, the statutes (Laws 1893, Act 84, sec. 20) says: "And no deed of the property sold at a delinquent tax-sale shall be issued by the tax-collector, or any other officer, to the purchaser of such property, until after such purchaser shall have filed with such tax-collector an affidavit showing that the notice heretofore required to be given has been given as herein required, which said affidavit shall be filed and preserved by the tax-collector," etc.

The making of the affidavit showing notice and filing of the same are equally mandatory. The findings of the court and the evidence show that there never was any affidavit filed. Miller v. Miller, 96 Cal. 376, 31 Am. St. Rep. 229, 31 P. 247; Reed v. Lyon, 96 Cal. 501, 31 P. 619; Holbrook v. Fellows, 38 Ill. 440; Wilson v. McKenna, 52 Ill. 43.

"Statutes provide sometimes for an affidavit of service to be filed with the officer whose duty it is to execute the tax-deed. Such affidavit is then a prerequisite to the validity of the tax-deed." American Miss. Soc. v. Smith, 59 Iowa 704, 13 N.W. 849; Ellsworth v. Cordrey, 63 Iowa 675, 16 N.W. 211; Smith v. Heath, 80 Iowa 231, 45 N.W. 768; Wisner v. Chamberlain, 117 Ill. 568, 7 N.E. 68; Davis v. Gosnell, 113 Ill. 121; Gage v. Hervey, 111 Ill. 305; Gage v. Mayer, 117 Ill. 632, 7 N.E. 97; Lockwood v. Gehlert, 53 Hun, 15, 6 N.Y.S. 20.

OPINION

STREET, C.J.

-- 1. This was an action brought by Frank H. Hereford, appellant herein, and plaintiff in the district court, against E. A. O'Connor, appellee, to quiet title to an undivided one-half interest in the Empire Mine, located in Patagonia Mining District, Pima County, Arizona. The Empire Mine is a patented mine, letters patent having been issued therefor, bearing date February 17, 1877, and has been assessed for taxes since that date. Taxes, without dispute, had been paid thereon for the years 1883, 1885, 1887, 1888, 1889, and 1890, as well as for other years, while the taxes for some other years had been allowed to go delinquent, and at times unpaid. Plaintiff claimed through and by virtue of a tax-deed from the county treasurer and ex officio tax-collector of Pima County, dated the ninth day of October, 1896, for the consideration of $19.78, upon a sale of an undivided one-half interest in said mine, on the twelfth day of April, 1894, for taxes assessed for the year 1893. The findings of fact and conclusions of law made by the trial court are as follows: --

"First. That plaintiff bases his cause of action on the tax-deed introduced in evidence, said deed having been issued by the tax-collector of Pima County, Arizona, to plaintiff, Frank H. Hereford, on the ninth day of October, 1896, for the property described in the complaint. Second. That notice of intention to apply for a deed, required to be given under section 20 of Act No. 84 of Session Laws of Arizona for 1893, introduced in evidence by plaintiff, did not and does not show service of said notice as required by said section, in that no affidavit of service of said notice was made and filed with the tax-collector before the issuance of the deed aforesaid by the tax-collector to plaintiff as required by law.

"As a conclusion of law from the foregoing facts the court finds that the deed issued by the tax-collector to plaintiff for the property described in the complaint was issued without authority of law, and is void."

2. Session Laws 1893 (Act No. 84, secs. 21, 22) provide: --

"Sec. 21. The matters recited in the certificate of sale must be recited in the deed, and such deed, duly acknowledged or proved, is conclusive evidence that: (1) The property was assessed as required by law. (2) The property was equalized as required by law. (3) The taxes were levied in accordance with law. (4) At a proper time and place the property was sold as prescribed by law, and by the proper officer. (5) The person who executed the deed was the proper officer.

"Sec. 22. Such deed, duly acknowledged or proved, is (except against actual fraud) prima facie evidence of all other facts therein stated, and of the regularity of all other proceedings from the assessment by the assessor up to the execution of the deed."

Plaintiff under this law, had purchased the undivided one-half interest in the Empire Mine, for which he asked the title to be quieted, and the only evidence which he introduced of his title to such mine was said tax-deed. Among the other recitations in the deed was the following: "Whereas, the said Frank H. Hereford, the owner and holder of said certificate of sale, has filed with said party of the first part, as treasurer and ex officio tax-collector, as aforesaid, an...