Thomas v. Heirs of Braffet, 8519

• Decision Date: 27 December 1956
• Docket Number: No. 8519,8519
• Citation: 305 P.2d 507,6 Utah 2d 57
• Parties: d 57 Jessup THOMAS et al., Plaintiffs and Appellants, v. The HEIRS OF Mark P. BRAFFET and Hannah Braffet, both deceased; Robert I. Braffet and Mary Braffet, his wife; Maude White Waring, James H. Braffet, a single man, et al., Defendants and Respondents.
• Court: Utah Supreme Court

Page 507

305 P.2d 507

6 Utah 2d 57

Jessup THOMAS et al., Plaintiffs and Appellants, v. The HEIRS OF Mark P. BRAFFET and Hannah Braffet, both deceased; Robert I. Braffet and Mary Braffet, his wife; Maude White Waring, James H Braffet, a single man, et al Defendants and Respondents.

No. 8519.

Supreme Court of Utah.

Dec. 27, 1956.

George B. Stanley, Heber, for appellants.

Young, Young & Sorenson, Provo, for respondents.

CROCKETT, Justice.

This is an action to quiet title to 600 acres of desert land in Duchesne County.

All of the defendants in the action deraign their interest in the land from Mark P. Braffet, who acquired title in 1914. During his lifetime, Braffet made the following conveyances: to C. E. Miller, an undivided 1/6 interest; to Ernest Stenger, an undivided 1/6 interest; to John M. Zane, an undivided 1/6 interest; to Peter Barboglio, an undivided 1/24 interest; to R. J. Turner, an undivided 1/24 interest; to Lila Cramer, an undivided 1/24 interest; and to R. J. Sharp, an undivided 1/24 interest. The total interest conveyed by Braffet amounted to an undivided 2/3 of the property, leaving him with an undivided 1/3 interest in the land. Braffet's wife, Hannah J. Braffet, did not join in any of the above conveyances made by her husband.

In 1927, Braffet died leaving as his only heirs his widow, Hannah J. Braffet, who sons, Robert J. Braffet and James H. Braffet, and a daughter, Maude Braffet White, now Maude Braffet White Waring. All of these heirs of Mark P. Braffet, including his widow, filed written consents with the Clerk of the District Court of Carbon County, consenting to a partial distribution of the estate, and the court made a decree of distribution. Under this decree, the undivided 1/3 interest which Braffet had retained to this particular land in controversy was awarded to Maude Braffet White (Waring).

In 1945, Maude Braffet White (Waring) quitclaimed her interest to David G. Smith. The remainder of the defendants Helen B. Mott, W. H. Coltharp, and L. L. Pack are grantees of David G. Smith and Juanita C. Smith, his wife.

The plaintiffs derive their interests from a tax title. In 1929, a tax sale to Duchesne County took place and in 1936 an auditor's tax deed was executed. Duchesne County in 1945 quitclaimed to Jessup Thomas. The other plaintiffs, William H. Van Tassell and Orven J. Moon are grantees of Jessup Thomas and Irene Thomas, his wife.

All of the evidence in the case was either documentary or by stipulation. It was established that plaintiffs had not been in continuous and uninterrupted possession of the property for a period of seven years; that taxes for the years, 1944, 1945, 1947, 1948, 1949, 1950, 1952, 1953 and 1954 were paid by plaintiffs and for 1946 and 1951 were paid by defendant, David G. Smith; and that the auditor's affidavit required by law ¹ was not affixed to the assessment roll for the year, 1929.

On May 22, 1946, a civil action, 2263, was commenced by two of the plaintiffs, William H. Van Tassell and Orven Moon, to quiet title to the property. Upon their request that action was dismissed by the trial judge on October 10, 1949.

On October 27, 1951, a second action, 2693, was commenced wherein the present plaintiffs sought to quiet title to the property. Defendants, David G. Smith, Juanita C. Smith, his wife, Helen B. Mott, L. L. Pack, Nora Pack, his wife, W. W. Coltharp and Oral Coltharp, his wife, filed an answer in the action. No other parties appeared, and plaintiffs again requested the court to dismiss the action, which was done June 16, 1952.

The instant case (the third one) was filed June 25, 1952. The Smith, Mott, Pack and Coltharp defendants again were the only ones to answer, which they filed on March 21, 1953 and asked that an undivided one-third interest in the land be quieted in them. On September 14, 1953 the court, upon the motion of the plaintiffs, entered an order dismissing the action as to all defendants who had not answered, and this order expressly provided that the dismissal was without prejudice. On February 23, 1954, the administrator of the estate of John M. Zane (one of the defendants with respect to whom the action had been dismissed) intervened in the action, claiming an undivided one-sixth interest in the land.

The trial court found that the plaintiffs had no right, title or interest in the real property against the defendants, Smith, Mott, Pack, Coltharp and Zane. From this judgment plaintiffs appeal, making the following contentions:

A. That the failure to attach the auditor's affidavit to the assessment roll is not a fatal defect in the taxing procedure entecedent to sale.

B. That the defendants were barred by the statute of limitations from asserting rights in the property.

C. That the defendants did not establish that they were entitled to the interests awarded to them.

D. That the trial court erred in ruling that two prior dismissals acted as an adjudication on the merits and precluded plaintiffs from asserting their title against the Zane interests.

A. In Telonis v. Staley, ² this court pointed out the importance of complying with the statute which requires the county auditor to deliver the corrected assessment roll to the county treasurer with his affidavit attached thereto. It was there stated that it would be unreasonable to suppose that the legislature intended that the assessment book be placed in the hands of the tax collector without any authentication whatsoever, and that failure to execute and attach such affidavit is more than a mere 'formality.' Later cases have never wavered from this position, and it is now a firmly established rule of law in this jurisdiction that the absence of the auditor's affidavit is a fatal defect and would render void a tax sale upon which a tax deed is based. ³

B. It is asserted, however, that even if the tax deed was defective, the statute of limitations bars the defendants from attacking the tax title. The applicable statutes provide as follows:

78-12-5.2 U.C.A. (Chapter 19, S.L.U.1951). 'No action or defense for the recovery or possession of real property or to quiet title or determine the ownership thereof shall be commenced or interposed against the holder of a tax title after the expiration of four years from the date of the sale, * * * and after the expiration of one year from the date of this act. * * *'

78-12-5.3. 'The term 'tax title' * * * means any title to real property, whether valid or not, which has been derived through or is dependent upon any sale, * * * for the liquidation of any tax levied against such property. * * *'

It is the plaintiff's contention that since the above enactment went into effect on May 8, 1951, ⁴ and the instant case was not filed until June 25, 1952, the one year allowed after the effective date of the statute had run, and they are barred from asserting their defense.

As opposed to this, the defendants contend, and the trial court held, that the filing by the plaintiffs of civil action 2693 (the second action) and the filing of the answer by the defendants, Smith, Pack, Mott and Coltharp, in which they asserted their interest in the property and demanded that title be quieted in them, tolled the statute of limitations until the action was dismissed; and the filing of a similar answer by the same defendants in the instant action has tolled the statute since June 25, 1952.

Plaintiffs argue that tolling the statute is an affirmative defense and since it was not pleaded, must be deemed waived by the defendants; and urge further that the filing of the answer in the prior action claiming title to the property is not equivalent to the filing of an action and would not toll the statute in any event. Defendants insist, however, that since the action was later dismissed, not on its merits, the statute of limitations would be extended for one more year after the date of dismissal.

The latter contention is based on section 78-12-40, U.C.A.1953, which provides:

'If any action is commenced within due time an a judgment thereon for the plaintiff is reversed, or if the plaintiff fails in such action or upon a cause of action otherwise than upon the merits, and the time limited either by law or contract for commencing the same shall have expired, the plaintiff, * * * may commence a new action within one year after the reversal or failure.'

Plaintiffs maintain that this statute by its express terms extends the statute of limitations only to 'plaintiffs,' and that it cannot be invoked by defendants. We think, however, that the purpose behind the statute is plain and that the legislature intended that anyone who had a cause in litigation which was dismissed for some reason 'otherwise than upon the merits' should have a reasonable time, which it set as one year, to reassert and attempt to establish his rights in court. There is no reason to believe that the legislature had any disposition to favor 'plaintiffs' over any other class of litigants. We think that the word 'plaintiff' as used in this section was meant to include not only the party who brings the action, but any party who affirmatively seeks relief, as did the defendants here, in this and the prior action. ⁵

That this view is sound is suggested by a statement of this court in Welner v. Stearns. ⁶ In that case Welner brought an action to quiet title alleging that he was the owner of property by reason of adverse possession for more than seven years. The defense was that the seven-year period had been interrupted by the filing of a previous action. The court quieted title in Welner on the grounds that the defendant had not come into the prior action but stated:

'* * * No doubt, if, after inviting Almanda Stearns into court, she had appeared in the action, and had disputed appellant's title, the running of the statute, for the purpose of that action at least, would have been arrested.'

Yet another facet of the problem devolving upon the statute of limitations is the...