Pioneer Nat. Trust Co. v. Kirk
| Decision Date | 16 January 1979 |
| Docket Number | No. 10,976,No. 2,P,CA-CIV,10,976,2 |
| Citation | 591 P.2d 996,121 Ariz. 508 |
| Parties | PIONEER NATIONAL TRUST COMPANY of Arizona, as Trustee of Trustlaintiff-Appellant, v. James Lee KIRK, as County Treasurer of Pima County, Arizona, Defendant- Appellee. 3040. |
| Court | Arizona Court of Appeals |
Corey & Kittle, P. C. by Jay S. Kittle and Patrick J. Farrell, Tucson, for plaintiff-appellant.
Stephen D. Neely, Pima County Atty. by Peter E. Pearman, Deputy County Atty., Tucson, for defendant-appellee.
Appellant, assignee of a tax sale certificate of purchase, appeals from a summary judgment in favor of appellee, Pima County Treasurer. We agree with the trial court's ruling that appellee lawfully refused to issue a treasurer's deed to appellant.
We view the evidence most favorably to appellant to determine whether there is a material factual dispute, and if not, whether appellee is entitled to judgment as a matter of law. Gibson v. W. D. Parker Trust, 22 Ariz.App. 342, 527 P.2d 301 (1974). In 1958, the United States, pursuant to the Recreation and Public Purposes Act, 43 U.S.C.A. Secs. 869-869-4 (1964), patented the disputed real property in fee simple determinable, subject to defeasance if within 25 years from the date of patent "the lands are devoted to a use other than . . . (park purposes)." The grantee, a homeowner's association organized to solve common problems among local homeowners, stopped using the property as a park 12 years later. The land has been unused since then.
On February 9, 1971, appellant's assignor purchased the property at a tax sale. On June 25, 1974, officers of the homeowner's association, which had been inactive since abandoning the park, deeded the property back to the United States because, as the deed recites, "patentee has not complied with the provisions of the patents and . . . hereby waives a hearing on the matter." On February 18, 1976, appellant timely filed an application for a treasurer's deed. Statutory notice was given, requiring redemption by July 8, 1976. The United States, intending to lease the property to Pima County for park purposes, authorized Pima County to redeem the property. On July 8, Pima County paid the necessary funds and received in its name a certificate of redemption, bearing the date July 19, 1976.
Appellee must issue a treasurer's deed upon compliance with statutory requirements if no valid redemption has occurred. Shulansky v. Michaels, 14 Ariz.App. 402, 484 P.2d 14 (1971); A.R.S. Sec. 42-458(A). Appellant attacks the validity of the redemption, arguing that A.R.S. Sec. 42-421 permits an agent to redeem only if he is the owner's agent. The United States was not the owner of the property, it contends, because the deed was invalid and the condition of defeasance had not occurred. Therefore, redemption by agent was improper. Alternatively, assuming the United States owned the property, it contends that a county may not act as agent to redeem property sold at a tax sale. Finally, even if Pima County may act as an agent, it contends that the certificate of redemption is invalid under A.R.S. Sec. 42-423(A) because it was issued to Pima County and dated after the redemption deadline.
Assuming that A.R.S. Sec. 42-458(A) permits only an owner's agent to redeem property, we hold that the United States was the owner because the special limitation had been satisfied, automatically vesting title to the property in the United States. See City of Tempe v. Baseball Facilities, Inc., 23 Ariz.App. 557, 534 P.2d 1056 (1975); L. Simes, Law of Future Interests, Sec. 13 (2nd ed. 1966). Consequently, we need not reach the question of the validity of the deed by the association to the United States, and redemption by agent was proper.
In construing a deed, we attempt to give effect to the intention of the parties. Shulansky v. Michaels, supra. The United States patented the property pursuant to legislation permitting transfer of federal land to non-profit associations exclusively for recreational purposes. 43 U.S.C.A. Sec. 869 (1964). Although defeasance conditions are strictly construed, failure to use the land for park purposes constituted devotion to a use other than park purposes within the meaning of the special limitation. The intention was that the land be used for park purposes; non-use frustrates the purpose of the patent as much as use for unrelated purposes.
A county has only those powers expressly conferred or necessarily implied. Transamerica Title Ins. Co. v. Cochise County, 26 Ariz.App. 323, 548 P.2d 416 (1976). Appellee has the burden of proving that Pima County is authorized to act as agent to redeem property...
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Johnson v. Mohave County
...to § 11-932, subject only to the unanimity exception found in § 11-251(9). ¶ 10 Appellees rely on Pioneer National Trust Company v. Kirk, 121 Ariz. 508, 591 P.2d 996 (App.1979) as support for their argument that the agreement is not a lease but rather a cooperative arrangement for the manag......
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Harrington v. Knuckey
...tax deed is mandatory so long as all statutory requirements have been met and no redemption has occurred. Pioneer National Trust Co. v. Kirk, 121 Ariz. 508, 591 P.2d 996 (App.1979); Shulansky v. Michaels, 14 Ariz.App. 402, 484 P.2d 14 (1971). There is no contention that the statutory requir......