Tintic Undine Mining Co. v. Ercanbrack

• Decision Date: 07 January 1938
• Docket Number: 5872
• Citation: 93 Utah 561,74 P.2d 1184
• Court: Utah Supreme Court
• Parties: TINTIC UNDINE MINING CO. v. ERCANBRACK et al

74 P.2d 1184

93 Utah 561

TINTIC UNDINE MINING CO. v. ERCANBRACK et al

No. 5872

Supreme Court of Utah

January 7, 1938

Appeal from District Court, Fifth District, Juab County, Le Roy H Cox, Judge.

Action by the Tintic Undine Mining Company against Charles F Ercanbrack and others to quiet title to certain mining claims, wherein plaintiff's title was based upon a tax sale deed. From an adverse judgment, the defendants appeal.

REVERSED AND REMANDED, with directions.

Soule &amp Spalding, of Salt Lake City, and J. Rulon Morgan, of Provo, for appellants.

Robinson & Robinson, of Provo, for respondent.

LARSON Justice. FOLLAND, C. J., and HANSON and MOFFAT, JJ., WOLFE, Justice, concurring.

OPINION

LARSON, Justice.

Plaintiff brought this action in the district court of Juab county to quiet title to certain mining claims. Plaintiff's title is based upon a deed from Juab county and is founded upon a sale for delinquent general taxes for the year 1927. The validity of the tax sale proceedings is the only question involved. The trial court upheld the tax sale proceedings and entered judgment for plaintiff. Defendants appeal.

Their position may be summarized thus: The assessment and sale of the property were unlawful and void because: (1) The descriptions in the assessment roll and throughout the entire tax proceedings were erroneous and insufficient. (2) The property was neither assessed nor sold in the name of the owner.

We shall state the facts from which the controversy arises and then discuss the points in order. The property involved consists of two patented lode mining claims, to wit, "Wind Ridge" and "Winridge No. 2," in the Tintic Mining District, Juab County. Patent on the two claims was issued in 1899 to appellant, Charles F. Ercanbrack, and William T. Ercanbrack, who was the predecessor in interest and title of the other appellants. This patent was recorded in the office of the county recorder in 1909 and gives the location of the claims as "Lot No. 3615, embracing a portion of Section 31, in Township 10 South, of Range 2 West, Salt Lake Meridian, containing 14.447 acres, more or less" together with a metes and bounds description of each claim. The survey and certificate number is 2545 as shown by the patent. The claims were originally located at the same time and overlap. Charles F. Ercanbrack, appellant, was owner of an undivided one-fourth interest in the lode claim patented as "Wind Ridge," and an undivided one-half interest in the lode claim patented as "Winridge No. 2." The other patentee, William T. Ercanbrack, died. His undivided interest was distributed in undivided interests to his heirs at law, which decree of distribution was recorded in 1918. From that date until the auditor's tax deed in April, 1932, the record title stood as follows: Wind Ridge: Charles F. Ercanbrack, one-fourth interest; Ruth Ann Ercanbrack, one-fourth interest; Ruth Esther Burraston, Alta M. Walker, Olive M. Austin, and Arvilla Vetter, each one-eighth interest. Winridge No. 2: Charles F. Ercanbrack, one-half interest; Ruth Ann Ercanbrack, two-twelfths interest; Ruth Esther Burraston, Alta M. Walker, Olive M. Austin, and Arvilla Vetter, each one-twelfth interest. All of said interest were undivided.

From 1919 to 1926, inclusive, the property was assessed as one assessment to all the appellants jointly, and taxes were paid. In 1927, the assessor split the assessment into three entries. He assessed Walker, Austin, and James Burraston, a stranger to the title with "2/3 of 1/2 interest of 14.447 acres." He assessed Arvilla Vetter with "2/3 of 3/4 interest in 14.447 acres." He assessed Charles F. Ercanbrack and Ruth Ann Ercanbrack with "1/3 of 1/2, 1/3 of 3/4 interest in 14.447 acres." (This is the year's assessment through which plaintiff deraigns title, and is assailed on several grounds: The assessment covers a total of 15/12 of the property; it does not show the interest of the parties in each tract or claim; an assessment is made in the name of a stranger to the title; the assessor segregated undivided interests into acreage allotments to each.)

In the published notice for delinquent taxes, the assessment to Burraston, Walker and Austin is described as "Wind Ridge and Wind Ridge No. 2, Lot No. 2615," and the assessment to Arvilla Vetter is described as "Wind Ridge and Wind Ridge No. 2, Lot No. 3615." The italics are supplied to indicate the erroneous description. The errors in fractional parts are also carried forward here. In the published notice of the May sale in 1932, at which respondent's predecessor bought from the county, the description in the sale against Arvilla Vetter is given as in the delinquent list, but the sale against Burraston, Walker, and Austin is given as lot No. 3615, whereas it was No. 2615 in the delinquent list. On the tax sale record, the property was listed as block 3615. The deed from the county to Miller, plaintiff's predecessor, is identical with the certificate of sale.

In the findings of fact and the decree, the following factual discrepancies occur: The one claim is now designated as "Winridge No. 2," its real name, but through all the tax proceedings it was carried as "Wind Ridge No. 2," and in one finding as to each mining claim the number 3615 is given as a survey number, when in truth it was the lot number. In another finding the number 3615 is given as the survey number of the Wind Ridge claim, while the number 5615 is given as the survey number of the Winridge No. 2. (The survey number of both claims is 2545, as appeared of record.) Still again the findings recite that the claims are "Lode number 3615, as designated by the Surveyor General." And the decree in describing the properties describes them as survey number 3615, and gives the Wind Ridge as an area of 5,509 acres and the Winridge No. 2 as 8.938 acres, although the record is silent as to the area in either claim and there is no information from which it can be computed. Summarized, the following irregularities appear in the descriptions in the proceedings: (a) Assessments made, in part, in name of stranger to title; (b) names of some owners of undivided interests are omitted in tax proceedings although such names appeared of record; (c) mining claims were assessed and described by wrong names; (d) no township, range, or section was given although the same appeared of record; (e) the surveyor general's lot number was variously given as a lot number, a survey number and a lode number; (f) the number itself throughout the proceeding was variously given as 2615, 3615, 5615; such number furnishing the only identification clues; (g) more property was assessed than existed, 15/12 in interests being assessed; (h) undivided interests upon which the taxes had been paid were sold; (i) the assessor sought to assess undivided interests in divided acreage; (j) the assessor erroneously and arbitrarily divided the overlapping acreage of two claims between them; (k) the same description is not used in the tax sale as in the assessment, nor in the tax deed as in the tax sale; nor in the deed from the county as in the tax proceedings; nor in the findings and decree as in the tax and sale proceedings. And, upon these errors, appellants contend the tax sale proceedings were and are void. At the outset we state that each of the propositions (a) to (k), inclusive, is a correct statement of facts as disclosed by the record. Do these facts, then, void the sale?

It is elemental, and settled beyond argument in this jurisdiction, that tax sale proceedings and statutes are strictissimi juris. The sales are made exclusively under statutory authority. The seller is making a sale not coupled with an interest, and derives his authority solely from the statute, and it is derived from no rule or principle of the common law. He can have no authority to sell except as he is made the agent of the law for that purpose, and, if the steps necessary to precede his action fail, he is not invested with legal right to make the sale; if one step fails, they all fail. The rule, therefore, is that all the preliminary requirements of the statute, made conditions to the exercise of the right and power to sell, and designating the various proceedings which culminate in the sale, must have been strictly complied with. The officers who execute this power should follow the steps outlined for its exercise with precision. It is a special jurisdiction and must be strictly pursued. As was said in Wister v. Kammerer, 2 Yeates 100, "An exact and punctual adherence to the laws can alone divest the title of lands on a sale for nonpayment of taxes." When the statutes governing the sale of lands for taxes direct an act to be done, or the manner, time, form, or place of doing it, such act must be done as prescribed, and the statutes must be strictly, if not literally, complied with. Jungk v. Snyder, 28 Utah 1, 78 P. 168; Moon v. Salt Lake County, 27 Utah 435, 76 P. 222; Asper v. Moon, 24 Utah 241, 67 P. 409; Bean v. Fairbanks, 46 Utah 513, 151 P. 338; Hatch v. Edwards, 72 Utah 113, 269 P. 138; Olsen v. Bagley, 10 Utah 492, 37 P. 739; Eastman v. Gurrey, 15 Utah 410, 49 P. 310.

Upon this basis we shall consider the points raised, (a) to (k) supra, as presenting three questions: (1) Was the error in the name of the party assessed as owner fatal? (2) Were the errors in description of the property fatal? (3) What is the effect of the differences in description in the various instruments through the tax proceeding? We note them seriatim.

The statute, section 80-5-12, R. S. Utah 1933, section 5884, Comp. Laws Utah 1917, reads:

"If the name of the owner or claimant of any property is known to the assessor, or if it appears of record in the office of the county recorder where the property...