Oregon Short Line R. Co. v. Hallock

• Court: Utah Supreme Court
• Writing for the Court: FRICK, C. J.
• Citation: Oregon Short Line R. Co. v. Hallock, 41 Utah 378, 126 P. 394 (Utah 1912)
• Decision Date: 05 August 1912
• Docket Number: 2361
• Parties: OREGON SHORT LINE RAILROAD COMPANY v. HALLOCK et al

126 P. 394

41 Utah 378

OREGON SHORT LINE RAILROAD COMPANY v. HALLOCK et al

No. 2361

Supreme Court of Utah

August 5, 1912

APPEAL from District Court, Third District; Hon. C. W. Morse, Judge.

Action by the Oregon Short Line Railroad Company against E. S Hallock and another.

Judgment for defendant. Plaintiff appeals.

REVERSED WITH DIRECTIONS.

P. L Williams, George H. Smith and H. B. Thompson for appellant.

Booth Lee, Badger, Rich & Parke, and Dey, Hoppaugh & Fabian for respondents.

FRICK, C. J. McCARTY and STRAUP, JJ., concur.

OPINION

FRICK, C. J.

On the 21st day of October, 1905, appellant commenced this action to quiet the title to a part of lot 6, block 81, plat A, Salt Lake City Survey. The portion of lot 6 in question is the portion marked "X" in the following plat:

[SEE PLAT IN ORIGINAL]

The action, for some reason not disclosed by the record, was permitted to lie dormant until last December, when it was tried to the court, and on the 15th day of January, 1912, findings of fact and judgment were duly entered.

The material and undisputed facts in substance, are: That in June, 1902, appellant commenced a proceeding under our statute in the district court of Salt Lake County against the owners of said lot 6 to condemn that portion thereof marked "X" on the foregoing plat; that when the proceedings were commenced an order was made by said court, which permitted appellant to take possession of the portion sought to be condemned, which it did; that subsequently, on the 26th day of April, 1904, said court entered its final order or judgment in condemnation, and on payment by appellant of the sum of $ 13,000, in the language of the decree "as compensation for the land taken and damages sustained by the defendants to the remaining portion of the said land," the title to the portion marked "X" was by said judgment vested in appellant, and it has used the same continuously for railroad purposes; that at the time said condemnation proceedings were commenced, and when said judgment of condemnation was entered, and ever since the year 1900, and, perhaps, for some time prior thereto, all of said lot 6 was owned in common, undivided and unpartitioned, by the heirs of one Samuel Russell, deceased; that in the years 1901 and 1902 all of lot 6 was assessed in the name of "Samuel P. Russell et al."; that said Samuel P. Russell is one of the heirs aforesaid, and was the owner of an undivided two thirty-thirds of said lot 6; that the taxes for said years of 1901 and 1902 remained unpaid, and the said respondent E. S. Hallock purchased said lot 6 at tax sale from the county treasurer of Salt Lake County, and received a certificate of sale from him; that the assessed valuation of said lot 6, with the improvements thereon, for the year 1901 was $ 4920, and for the year 1902 $ 4825, and the taxes for the former year amounted to $ 160.67, and for the latter $ 154.15, which with costs and accrued interest to the date judgment was entered in this case, amounted to the sum of $ 717.96; that for the year 1903 the property was assessed in the same manner, and lot 6 was again sold for the taxes for that year by the treasurer aforesaid to Stephen Hays, and the taxes for that year, with accrued interest and costs at the date of judgment, amounted to $ 239.36, after deducting a two thirty-third part thereof, which had been redeemed by one of the heirs.

The court entered judgment in favor of Hallock for the sum of $ 717.96, and in favor of Hays for the sum of $ 239.36. The fact of the redemption of the portion redeemed, as aforesaid, is immaterial for the purposes of this decision, and will not be referred to hereafter. The court decreed the foregoing amounts to be a lien upon that portion of lot 6 marked "X," and further decreed that, unless appellant paid the whole of said amounts within 30 days from the entry of judgment, the portion of lot 6 marked "X" be sold, and the proceeds derived from said sale be applied (1) to the payment of costs of sale, (2) to the payment of the judgment aforesaid, and (3), if any surplus remained, that the same be paid to appellant.

Appellant has assigned numerous errors, among which are that the court erred in its conclusions of law and in entering judgment as aforesaid. Counsel for appellant also insist that the respondents produced no legal nor competent evidence that said lot 6 was legally assessed for taxation, nor that the taxes in question were legally levied for the several years above mentioned.

With regard to the objections to the admission of the record evidence which was produced by respondents to show a proper assessment of lot 6, it must suffice to say that under the great weight of authority the objections interposed at the trial were too general to permit us to review the court's rulings with respect thereto. Moreover, the record and other evidence that was produced by respondents to show that the property was properly assessed in the name of Samuel P. Russell et al., by virtue of our statute (Comp. Laws 1907, sec. 2529), was sufficient to sustain the court's findings that lot 6 was properly assessed, and the taxes in question properly levied for the purpose of creating a lien against said lot 6.

It has often been held that mere irregularities are insufficient to invalidate an assessment and levy of taxes, when the same are assailed in an action like the one at bar. The law which controls the courts in such actions is well stated by the author in Black on Tax Titles (section 442) in the following words:

"The maxim, 'He that seeks equity must do equity,' requires that a party seeking to have a tax deed set aside as a cloud upon his title to real estate must offer to repay to the purchaser the amount of all taxes and costs paid by him which were a just and legal charge upon the land, with interest; and it is error to set aside a tax sale for mere irregularities, not affecting the substantial justice of the tax, without requiring such payment. And, further, it is not enough to decree that such repayment be made; but the court should make it a condition precedent to setting aside the tax deed."

A large number of cases in support of the foregoing text are cited by Mr. Black in a footnote, to which we refer the reader without specially citing the cases here.

The contentions, therefore, that the court erred in overruling appellant's objections to the admission of evidence, and that it erred in finding that lot 6 was properly assessed for taxation, and that the taxes in controversy were properly levied for the years aforesaid, cannot be sustained.

The serious question in the case, however, is whether the conclusions of law and judgment are supported by the undisputed facts. As we have pointed out, lot 6 was assessed as one parcel, upon which the taxes for the years in question were levied before final judgment in condemnation was entered in favor of appellant. Respondents' counsel therefore contend that the appellant obtained title to that portion of lot 6 marked "X" by virtue of the judgment...