Wall v. Kaighn

• Decision Date: 01 December 1914
• Docket Number: 2550
• Citation: 45 Utah 244,144 P. 1100
• Court: Utah Supreme Court
• Parties: WALL v. KAIGHN

144 P. 1100

45 Utah 244

WALL v. KAIGHN

No. 2550

Supreme Court of Utah

December 1, 1914

Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by Enos A. Wall against Maurice M. Kaighn.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

C. S Patterson for appellant.

Dey Hoppaugh & Fabian for respondent.

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

OPINION

STRAUP, J.

This is an action to quiet title to two mining claims in Salt Lake County. Both parties claim title. Both admit one Hodson was the owner of them in 1904. The plaintiff claims title by deed from him; the defendant by tax sales in 1905, tax deeds to the county and by deed from it. The plaintiff put in evidence the deed from Hodson and rested. The defendant, to support his title, put in evidence his deed from the county, the tax deeds, and the records of the tax proceedings leading up to the issuance of the tax deeds. Upon the evidence thus adduced by the defendant, the plaintiff contended fatal defects, and infirmities were shown respecting the tax sales and proof of publication of the delinquent tax lists, and that the certificates of sale and the tax deeds were void on their face. The court held with the plaintiff, and quieted the title in him. The defendant appeals. He urges the tax deeds are good, and that all the proceedings leading up to them were regular and proper and in strict compliance with the statute.

The chief contentions of the plaintiff are that the deeds on their face are void, and that the certificates of sale on their face show a void sale, for that, as is urged: (1) They show the county at the sale for delinquent taxes to have been a competitive bidder and a voluntary purchaser, and that the property was not offered for sale and sold as by the statute provided; and (2) because neither the certificates of sale nor the deeds show the conditions under which the county lawfully could be a purchaser at the sale, and do not show no person bid or offered to pay the amount of taxes and costs required to be paid.

The statute (section 2621, R. S. 1898, Comp. L. 1907), so for as material, provides:

The treasurer "shall expose for sale * * * sufficient of such delinquent real estate to pay the taxes and costs, at public auction * * * and sell the same to the highest responsible bidder for cash," etc.

Section 2623:

"When real estate is sold for taxes, the treasurer shall make out, sign, and deliver to the purchaser of any real property sold for the payment of taxes as aforesaid a certificate of sale, describing the property on which the taxes and costs were paid by the purchaser, * * * how much and what part of each tract or lot was sold, and stating the amount of each kind of tax and costs for each tract or lot for which the same was sold, as described in the record of sales, and that payment has been made therefor. If at any tax sale no person shall bid and pay the treasurer the amount of tax and costs, required to be paid as aforesaid on any real estate, the treasurer shall make to the county a certificate similar to that given to other purchasers, and deliver the same to the county auditor, and such sale to the county shall have the same effect as if made to an individual, and the county auditor shall credit the treasurer with the amount of the tax due thereon, and costs to date of sale."

Section 2629:

If any property sold be not redeemed, the auditor shall "on presentation of the treasurer's certificate of sale, make out a deed conveying the property therein described to the purchaser." He shall also "make out a deed conveying to the county all property purchased by the county and not redeemed. * * * Deeds issued by the county auditor in pursuance hereof shall recite substantially the amount of the tax for which the property was sold, the year for which it was assessed, the day and year of sale, the amount for which the real estate was sold, a full description of the property, and the name of the purchaser or assignee; and when attested by the county auditor shall be prima facie evidence of the facts recited therein."

The certificates of sale recite:

"This certifies that * * * in pursuance of due publication of notice and in the manner prescribed by the laws of the state of Utah," the treasurer of Salt Lake County "sold to Salt Lake County" for delinquent taxes, describing them, amounting to $ 2.84 and costs on the one claim, and $ 3.72 on the other, "the following described property, situate in the County of Salt Lake, State of Utah, assessed in the name of Jno. T. Hodson, as owner: Alamo mining claim No. 231. No. of acres, 5.847. The other claim: Hub mining claim No. 2940. No. of acres, 14.486.) That said described property was the smallest parcel that could be sold for said taxes and costs." The tax deed to the Alamo claim to the county recites: The treasurer "exposed for sale at public auction * * * and offered to sell to the highest responsible bidder, for cash, the said property hereinafter described [describing the whole of it] assessed to John T. Hodson, or sufficient thereof to pay the said taxes and costs; that at said sale the said premises hereinbefore described were sold to Salt Lake County, for the sum of $ 2.84, that being the highest and best bid."

The tax deed to the Hub is the same, except the description of the property and the sum for which it was sold, $ 3.72.

It is conceded that the county at the sale could not, under the statute, be a bidder, nor a voluntary purchaser; and if it in fact was a bidder, or such a purchaser, the sales are void, and the tax deeds bad. The plaintiff contends that the recitals in the deed, "offered to sell to the highest responsible bidder" and "sold to Salt Lake County for the sum of" $ 2.84, "that being the highest and best bid," show the county to have been a competitive bidder and a voluntary purchaser, rendering the deed void on its face. In support of that he cites 2 Cooley on Taxation (3d Ed.) 977; Magill v. Martin, 14 Kan. 67; Babbitt v. Johnson, 15 Kan. 197; Larkin v. Wilson, 28 Kan. 513; Rush v. Lewis & Clark County, 36 Mont. 566; 93 P. 943; (on rehearing) 37 Mont. 240; 95 P. 836; Kramer v. Smith, 23 Okla. 381; 100 P. 532; Wade v. Crouch, 14 Okla. 593; 78 P. 91; Reckitt v. Knight, 16 S.D. 395; 92 N.W. 1077; Thompson v. Roberts, 16 S.D. 403; 92 N.W. 1079. The defendant, not conceding and but faintly disputing that such recitals in the deed, if proper to be considered, show the county to have been a competitive bidder and a voluntary purchaser, chiefly asserts that such recitals were not required to be, and were unnecessarily put, in the deed, and hence should be treated as surplusage, and not considered as proving anything, and that, if the county in fact was such a bidder or purchaser, such fact was required to be shown by evidence aliunde the deed. He, therefore, urges that since the statute provides that the deed "shall recite substantially the amount of the taxes for which the property was sold, the year for which it was assessed, the day and year of sale, the amount for which the real estate was sold, a full description of the property, and the name of the purchaser," etc., the recital in the deed, "that being the highest and best bid" was wholly unnecessary and not required; that without such unnecessary recital, "the name of the purchaser," Salt Lake County, and "the amount for which the real estate was sold," $ 2.84, the essentials to be recited, are properly recited; and so, without such unnecessary recital, the deed does not show the county to have been a bidder, at least not a competitive bidder or voluntary purchaser. We think the recitals in the deed, if proper to be considered, show the county to have been a competitive bidder and a voluntary purchaser, rendering the deed void. The cases heretofore referred to show that. That is not seriously disputed by the defendant, but he asserts such cases are based on statutes dissimilar to ours. They are broader than our statute. They are to the effect that a tax deed is prima facie, or presumptive, and some of them conclusive, evidence "of the truth of all facts therein recited," or "of the regularity of all proceedings, from the value of the land by the assessor, inclusive, up to the execution of the deed," or both. Under such statutes it is, in effect, conceded that such recitals as here in the deed could be considered and show the deed to be void on its face. But it is denied that the particular recitals referred to may here be properly considered as evidence of the facts recited, under a statute such as ours.

Under the statute it was essential to recite in the deed the name of the purchaser. All that is recited concerning that subject, of course, may be considered. A part of it cannot be considered and a part rejected. Let it be assumed that in reciting the name of the purchaser more was recited than was essential under the statute. Nevertheless the fact appears that in naming the purchaser, reciting the thing required to be recited, language is used which shows a purchaser and so describes the conditions of his purchase as to render him no lawful or competent purchaser, not that the claimed unnecessary recital is merely descriptive of the purchaser but is destructive of the recital preceding it naming the purchaser. That is, the recital named a purchaser, and then in connection therewith, and as a part of such recital, statements are made which show that he could not be a lawful or competent purchaser. Suppose the deed recited the name of the purchaser to be "The State of Utah," or "Board of Equalization," or "Board of Pardons," while the name of the purchaser would be given, yet the name of one is stated who could not lawfully be a purchaser. Surely such a...