Peterson v. Weber County

• Decision Date: 22 June 1940
• Docket Number: 6109
• Citation: 99 Utah 281,103 P.2d 652
• Court: Utah Supreme Court
• Parties: PETERSON v. WEBER COUNTY, et al

103 P.2d 652

99 Utah 281

PETERSON v. WEBER COUNTY, et al

No. 6109

Supreme Court of Utah

June 22, 1940

Appeal from District Court, Second District, Weber County; E. E Pratt, Judge.

Action by Ezra M. Peterson against Weber County, William R McEntire, and others, County Commissioners of Weber County and the Globe Oil Company, to restrain the county from executing a quitclaim deed to certain property to the Globe Oil Company, as grantee, and to compel the Commissioners to accept from plaintiff an amount of money theretofore tendered sufficient to pay the taxes, interest, penalties and costs that had accrued following the sale of the property by the county for the taxes for the year 1927. From the judgment the Globe Oil Company appeals.

Partly affirmed and partly reversed and remanded with directions.

John A. Hendricks, of Ogden, for appellant.

H. H. Henderson, of Ogden, for respondent.

BRONSON, District Judge. MOFFAT, C. J., and LARSON and McDONOUGH, JJ., WOLFE, Justice, concurring. PRATT, J., being disqualified, did not participate.

OPINION

BRONSON, District Judge.

On December 8, 1936, plaintiff, respondent here, brought suit against Weber County, the Board of Commissioners thereof, and the Globe Oil Company, to restrain the county from executing a quit claim deed to certain property to the Globe Oil Company as grantee, and to compel the commissioners to accept from plaintiff an amount of money theretofore tendered, sufficient to pay the taxes, interest, penalties, and costs, that had accrued following the sale of the property by the county for the taxes for the year 1927. The plaintiff's claim is based upon a quit claim deed to the property in question which he secured June 24, 1936, from prior owners with undisputed title.

The claim of the defendant Globe Oil Company is based upon a quit claim deed executed on behalf of Weber County, December 24, 1936. The Board of County Commissioners had, on the 9th day of September, 1935, passed a resolution and entered the same in the minutes of their proceedings, undertaking to sell the property to the defendant company upon terms which were met by the company by payment to the county of $ 1,035.90. The defendant company made a partial payment and took possession of the property shortly after September 9, 1935, and proceeded to erect certain improvements thereon, consisting of a gasoline and oil filling station, living quarters for an attendant, grease pits, etc. The property was a corner lot in the City of Ogden, vacant at the time the Globe Oil Company took possession.

The rights of Weber County to the property are predicated upon the following: The property was sold January 20, 1928, for the general taxes levied thereon for the year 1927, and the County Treasurer issued tax sale certificate to Weber County. The taxes thereafter not being paid and the property not being redeemed, the County Auditor of Weber County issued an auditor's deed thereto to Weber County on January 28, 1932. The property was noticed for sale and sold to Weber County May 24, 1932. It is undisputed that the County Treasurer never certified the tax sale record of said property to the County Recorder as required by law. It is also undisputed that the publication of the notice of the May sale was made for four consecutive weeks and as follows: May 2nd, May 9th, May 16th, May 23rd, 1932, and the property was sold May 24th, 1933, a lapse of only 22 days after the first publication.

The plaintiff asserted, among other things, that the May sale was void for the reason that the same was not properly noticed, the statute requiring the lapse of four full weeks, or 28 days, between the first publication and the sale, and that the failure of the County Treasurer to certify the tax sale record to the County Recorder rendered the auditor's deed void. The trial court so found, adjudged the quit claim deed of December 24, 1936, from the County to the defendant Globe Oil Company to be null and void, quieted title in the plaintiff and directed the payment over to the Globe Oil Company the sum of $ 1,146.50, which had been paid into the court by plaintiff, and which was the amount, with interest, paid by the Globe Oil Company to the County for the property.

There being no objection, the trial court allowed the defendant company to supplement its answer by adding thereto, pursuant to the occupying claimants statute a claim for the appraised value of the permanent improvements placed upon the property by the defendant company while in possession. It was uncontroverted, upon a further hearing on this phase of the case, that all of the improvements were made after the defendant company went into possession of the property, pursuant to the agreement to purchase and after part payment of the purchase price, but long prior to the time the company received its quit claim deed from Weber County. The trial court found that the improvements were placed upon the property while it was occupied by the company without any color of title, and included in the decree an order restraining the defendant company from removing any of the permanent improvements and requiring them to vacate and deliver possession of the premises to plaintiff within 15 days.

The various assignments of error assail, first, the court's finding, that the deed to the defendant company from Weber County was null and void. Section 6056, Compiled Laws of Utah 1917, as amended by Chapter 140 Laws of Utah 1921, here involved, provided:

"Whenever a county has received a tax deed for any real estate sold for delinquent taxes, the board of county commissioners shall, during the month of May in each year, after publication once a week for four consecutive weeks preceding the date of sale, in a newspaper having general circulation in the county, or if no paper is published in the county, by posting in five public places in the county, offer for sale at the front door of the county court house, at the time specified in the notice, all such real property not heretofore sold or redeemed * * *."

This statute appears as Section 68 of Chapter 10, Title 80, Revised Laws of Utah 1933, as amended by Chapter 62, Laws of Utah 1933--but the provisions here pertinent have not been altered by the subsequent amendments.

Does this statute require the publication of the notice for four full weeks, or 28 days, preceding the May sale, and if so, does a failure to so publish the notice invalidate the May sale? The same question was recently before this Court in the case of Home Owners' Loan Corporation v. Stevens, Utah, 97 P.2d 744, 747. There, as here, 22 days only elapsed between the date of sale and the date of first publication. Mr. Justice McDonough in the prevailing opinion said:

"We construe Section 80-10-68, * * * to prescribe that notice of the May sale shall be given by publication of such notice once a week for four consecutive weeks and that the four weeks' notice--that is twenty-eight days--should be given, measured from the date of first publication. The findings in this case that the first publication of notice of the May sale was made on April 30th and that the sale was held on May 22nd, after four weekly publications, reveals that only twenty-two days elapsed between the date of first publication and the date of sale. Under the construction of the statute indicated this was insufficient notice.

"The failure of the county to publish the notice of said sale prescribed by law rendered such sale void. 26 R. C. L. 410; Bamonte v. Ocean Beach-fire Island Co., supra [222 A.D. 676, 225 N.Y.S. 19]; Savery v. Board of County Com'rs of Beaver County, supra [173 Okl. 284, 48 P.2d 275]; Sarkeys v. Lee, supra [149 Okl. 287, 300 P. 383]. It being void, the subsequent acts of the county officials with respect to the realty stand on the same footing as though no May sale were had or attempted. The holding of such sale is a prerequisite to a private sale by the county, and absent (sic) a prior May sale the attempted private sale is unauthorized and void. Utah Lead Co. v. Piute County, 92 Utah 1, 65 P.2d 1190. The sale, therefore, to the respondents in this case was ineffective to convey the title of the county. The title to the property, subsequent to the date of the purported May sale, and prior to a private sale to respondents, was the same as it was subsequent to the execution of the auditor's deed to the county and prior to the date of the purported May sale. The title, by virtue of the sale for taxes and the auditor's deed executed subsequent thereto, was in the county. However, until a valid May sale, respondent Joseph F. Peterson, by virtue of the deed from the Stevenses to him, had a right to redeem."

The holding is decisive upon the question involved in the instant case. Failure to publish the notice of the May sale as required by law rendered the sale void, and until a valid May sale the plaintiff herein had a right to redeem. The final disposition of this case renders it unnecessary to consider the other assignments on this phase of the controversy.

The right to recover for improvements placed upon real property where title to the land is subsequently established in another, is under our statutes predicated upon good faith occupancy and color of title all existing at the time the improvements are made. Chap. 6, Title 78, R. S. U. 1933. The defendant company made improvements after they had taken possession and paid a part payment of the purchase price but prior to the time they received the quit claim deed from the county. Their good faith is conceded. Under these facts the only question is: Did the defendant company have color of title at the time the improvements were made? If so, they are entitled to recover their value, otherwise not. Sec. 1 of ...