Keller v. Chournos
| Decision Date | 28 January 1943 |
| Docket Number | 6429 |
| Citation | 102 Utah 535,133 P.2d 318 |
| Court | Utah Supreme Court |
| Parties | KELLER v. CHOURNOS et al |
Appeal from District Court, First District, Box Elder County; L. v Trueman, Judge.
Action by Lloyd W. Keller against Nick Chournos and wife and the First National Bank of Malad, Idaho, to quiet title to certain grazing lands, wherein Nick Chournos and wife filed a counterclaim alleging title in themselves. From findings and judgment in favor of Nick Chournos and wife, plaintiff appeals.
Findings and judgment reversed with directions to enter findings and judgment in accordance with opinion.
Walter G. Mann, of Brigham City, for appellant.
Thatcher & Young, of Ogden, for respondent.
PRATT, Justice, on leave of absence.
OPINION
This is an appeal from a judgment quieting title to certain grazing lands, to be described, in the defendant Nick Chournos and his wife. The defendant First National Bank of Malad, Idaho, a mortgagee of Chournos, defaulted. Appellant Keller claims legal title to the property and commenced this action by the short form of complaint to quiet title. Defendants Chournos answered, setting up a general denial and, by counterclaim, alleged title in themselves by virtue of a quitclaim deed from Box Elder County. Plaintiff Keller replied, alleging that tax proceedings through which Chournos purported to take title from the County were null and void and of no effect and offered to reimburse defendants for all taxes and interest paid. The cause was tried to the court. Findings and judgment were entered in favor of the defendants Chournos, and plaintiff appeals.
The correct description of the grazing land is pleaded as follows:
The East half of the Southeast Quarter and the South-west Quarter of the Southeast Quarter of Sec. 12, containing 120 acres; and
The Northeast Quarter of the Northwest Quarter and the Northeast Quarter of Sec. 13, containing 200 acres, in Township 6 North Range 6 West, Salt Lake Base and Meridian, in Box Elder County, Utah.
The history of the land, as it is involved in this action, is as follows:
July 1, 1919: Patent from United States to Adrian L. Farr;
March 23, 1920: Mortgage executed by Farr and wife to A. F. Savage;
1920: Assessment of general taxes for 1920;
December, 1920: List published of Delinquent Taxes for 1920;
December 21, 1920: Tax Sale Certificates issued by County Treasurer to Box Elder County;
September 22, 1924: Savage commenced foreclosure proceedings under his mortgage from Farr and wife;
May, 1925: Annual tax sale published;
May 1, 1925: Auditor's Tax Deeds issued to Box Elder County, (recorded May 25, 1925);
January 29, 1926: Certificate of Sale by Sheriff to A. F. Savage under mortgage foreclosure;
September 6, 1927: Sheriff's Deed to Savage (not recorded until Oct. 5, 1940);
November 3, 1936: Quitclaim Deed from Box Elder County to Nick Chournos for $ 92.00 (taxes paid for 1937, 1938 and 1939 by Chournos);
June 18, 1940: Deed executed from A. F. Savage to plaintiff Keller;
October 5, 1940: Sheriff's Deed to Savage and deed from Savage to Keller recorded in County Recorder's Office (General taxes for 1940 paid by plaintiff Keller);
October 25, 1940: This action instituted by plaintiff Keller to quiet title.
It is thus shown that plaintiff Lloyd W. Keller claims legal title from the original patentee, through the latter's mortgage on foreclosure, and while the defendant testified that Farr or Savage had never been on the land, he admitted that he did not know either of them. Our statute, then Sec. 6451, Comp. L. Utah 1917 (now 104-2-7, R. S. U. 1933), provides:
"In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property shall be presumed to have been possessed thereof within the time required by law; and the occupation of the property by any other person shall be deemed to have been under and in subordination to the legal title, unless it appears that the property has been held and possessed adversely to such legal title for seven years before the commencement of the action." (Italics added.)
It will also be observed that Chournos claims title by virtue of the quitclaim deed issued to him by Box Elder County on November 3, 1936, for which he paid $ 92, and under which he took actual possession of the property and paid the general taxes thereon for the years 1937, 1938 and 1939. The general taxes for 1940 were paid by plaintiff Keller.
Respondents Chournos contend that plaintiff's action is barred by the provisions of our seven-year adverse possession statutes (104-2-5, 6 and 7, R. S. U. 1933), and the trial court found that Chournos and L. L. Keller, father of plaintiff, both of whom owned grazing lands adjoining subject property, went into actual possession of the premises more than ten years prior to the commencement of this action and used the same for grazing purposes. The record shows that if they did so graze upon and use the land prior to November 3, 1936, they were mere trespassers and not claimants of the land within the meaning of 104-2-12, R. S. U. 1933, which provides:
"In no case shall adverse possession be considered established under the provisions of any section of this code, unless it shall be shown that the land has been occupied and claimed for the period of seven years continuously, and that the party, his predecessors and grantors have paid all taxes which have been levied and assessed upon such land according to law." (Sec. 6456, Comp. L. U. 1917.)
Appellant assigns the following errors: (1) That the court erred in finding that the tax proceedings were in conformance with the statutes made and provided, and that title passed thereby; (2) that the court erred in finding that said action is barred under the provisions of Secs. 104-2-5, 6 and 7, R. S. U. 1933; and (3) that the court erred in refusing to grant appellant's motion for a new trial.
The first step to be examined to trace defendants' claim of title is the assessment roll of general taxes for the year 1920. A deputy county treasurer of Box Elder County, reading from the record, testified that it shows an assessment for 1920 to Adrian L. Farr of Ogden; that the notation, "Promontory, town or city survey," appears at the top of the page, but that the spaces for the township and range were not filled in. He then read the description of the property as it appears in the record, as follows:
(tax sale of $ 8.64 with notation in the "remarks" column, "sold to county").
Further, that the name of Adrian L. Farr and Ogden were dittoed and followed by:
He further testified that nothing on the page showed whether the township was north or south or the range east or west, but that Salt Lake Meridian was shown.
A copy of the tri-weekly Box Elder Journal, plaintiff's Exhibit "C," issued December 15, 1920, contains the following:
In this list, under the heading, "Promontory," appear the following descriptions:
and
Tax Sale Certificates were issued December 21, 1920, to Box Elder County, plaintiff's Exhibits "A" and "B". These recite, in part,
"That on the Twenty First day of December 1920, after due publication of notice in the manner provided by law, and pursuant to law, I, John J. Ward, as Treasurer of Box Elder County, State of Utah, offered for sale subject to redemption as provided by law, the property situated in the County of Box Elder, State of Utah, hereinafter described, for delinquent State * * * Taxes, for which said property is liable, assessed in the name of Adrian L. Farr, as owner, for the year 1920" etc.
These certificates are signed by , not for the treasurer or as a deputy treasurer, but as "Treasurer of Box Elder County, Utah." The descriptions in the respective instruments are written as follows:
"E 1/ 2 S.W. 1/ 4 S.W. 1/ 4 S.E. 1/4 of Sec. 12 Township (6) North Range (6) W. S. L. M. Containing (120) Acres," and "NE 1/ 4 N.W. 1/ 4 N.E. 1/4 of Sec. (13) Township (6) North Range (6) W. S. L. M. Containing (200) Acres."
Plaintiff's Exhibit "D" is a copy of the semi-weekly Box Elder Journal issued May 19, 1925, which contains the following:
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Trujillo v. Dimas
...was north or south under present facts was not fatal. Knapp v. Josephine County, 192 Or. 327, 235 P.2d 564, and Keller v. Chournos, 102 Utah 535, 133 P.2d 318, 322. In the latter case, the court 'The descriptions of the property from the beginning of these tax proceedings are attacked by ap......