Western Beverage Co. of Provo v. Hansen

• Decision Date: 11 December 1939
• Docket Number: 6124
• Citation: 96 P.2d 1105,98 Utah 332
• Court: Utah Supreme Court
• Parties: WESTERN BEVERAGE CO. OF PROVO, UTAH, v. HANSEN et ux

96 P.2d 1105

98 Utah 332

WESTERN BEVERAGE CO. OF PROVO, UTAH, v. HANSEN et ux

No. 6124

Supreme Court of Utah

December 11, 1939

Rehearing Denied, March 14, 1940.

Appeal from District Court, Sixth District, Sevier County; Henry D Hayes, Judge.

Action by the Western Beverage Company of Provo, Utah, against Peter Russel Hansen and others, to quiet title to land. From an adverse judgment, defendants City of Richfield and others appeal.

Affirmed.

T. A Hunt, of Richfield, for appellants.

Gerald Irvine, of Salt Lake City, Leon Fonnesbeck, of Logan, and Alfred Klein, of Salt Lake City, for defendants.

Ferdinand Erickson, of Richfield, for respondent.

MOFFAT, Chief Justice. LARSON and PRATT, JJ., concur. WOLFE, Justice. McDONOUGH, Justice, dissenting.

OPINION

MOFFAT, Chief Justice.

The Western Beverage Company brought an action to quiet title to the North half of Lot 2, Block 7, Plat C, Richfield Townsite Survey in Sevier County, Utah. Plaintiff alleges ownership. Defendant denies plaintiff's ownership and claims The City of Richfield is owner of the lot in question.

The record is brief and uncertain. Appellant has stated the issue. No exception to the statement made is taken. In the words of the appellant, the issue is:

"That after the lien for special improvements had accrued there was duly levied a general tax against said property and that all the proceedings were duly and legally taken to authorize Sevier County to sell the same for delinquent taxes and that the respondent became the purchaser of the tax title from Sevier County * * * that the only question to be presented to the court is whether or not the sale of the property by the county for general taxes extinguishes the lien of The City of Richfield for its special improvement taxes."

When real estate is sold for taxes, after published notice of delinquency, the county treasurer is required to make out and deliver to the county a certificate of sale. Revised Statutes of Utah 1933, Section 80-10-34. Whether redeemed before the time for redemption has expired or "Sold for taxes at private sale," as provided by statute, R. S. U. 1933, Sec. 80-10-36, subsequent taxes must be assessed. While the certificate of sale is held by the county, the treasurer shall not sell for taxes the so assessed property covered by the tax sale certificate, until the time for redemption, under the previous sale, shall have expired. R. S. U. 1933, Sec. 80-10-40. If any property sold to the county and not assigned is not redeemed after the filing of the tax sale record by the recorder, and after the expiration of the redemption period, the county auditor shall make out a deed conveying to the county all such property. R. S. U. 1933, Sec. 80-10-66.

Some argue title passes at the time of the sale for delinquent taxes "subject to redemption." Some that such "sale" lays the foundation for the beginning of the running of the statute of limitations or the period of "redemption" upon the expiration of which time the title of the owner against whom the tax was assessed is extinguished or the right to redeem, reacquire or recover title is lost. In either case, when the auditor's deed is executed and delivered, under certain circumstances, all rights of redemption are extinguished. Under different circumstances, such rights may not be extinguished until the "May Sale." In any event, the tax lien attaches from the date of levy as fixed by the statute. The processes following are matters pertaining to the ultimate maturity of the lien ending in complete transfer of title or the extinguishment of the lien by payment or conformance to requirements necessary to extinguish the lien so attached.

The answer to the question here involved depends upon the construction to be given to Sec. 15-7-48, R. S. U. 1933. The part of the section relating to that question reads:

"Special assessments made and levied to defray the cost and expense of any work or service contemplated by the provisions of this article, and the cost of collection thereof, shall constitute a lien upon and against the property upon which such assessment is made and levied from and after the date upon which the ordinance levying such assessment becomes effective, which lien shall be superior to the lien of any mortgage or other encumbrance, whether prior in time or not, except the lien of general taxes, and such lien shall continue until the tax is paid notwithstanding any sale of the property for or on account of a general or special tax." (Italics added.)

The statute provides for superiority of the general tax lien when it is said "which lien [special assessment lien] shall be superior" to other liens "except the lien of general taxes."

The last clause of the section then provides that the special assessment lien continues against the owner "until the tax is paid notwithstanding any sale of the property for or on account of a general or special tax"; but such continuance does not prevent the county or a purchaser other than a redemptioner acquiring good title from the county in pursuance of the maturity of the general tax lien and transfer of title. The lien continues against the owner and his rights in the property; but when the superior general tax lien is made effective in extinguishing the owner's title, one taking title in pursuance of the foreclosure of such superior lien secures a good title.

Had the statute read, "the special assessment 'lien shall be superior to the lien of any mortgage or other incumbrance whether prior in time or not * * * and such lien shall continue until the tax is paid notwithstanding any sale of the property for or on account of a general or special tax'" there would have been no difficulty, in so far as language goes, in concluding that the intention was to establish the superiority of the special assessment lien. This statement is subject to what we further say about "lien."

On the other hand, had the statute read, "the special assessment 'lien shall be superior to the lien of any mortgage or other encumbrance whether prior in time or not, except the lien of general taxes,'" no one would deny the superiority of the general tax lien.

Skeletonized and put into juxtaposition, we have this:

"Special assessments * * * shall constitute a lien * * * which lien shall be superior to any lien or other encumbrances * * * except the lien of general taxes, and such lien shall continue until the tax is paid notwithstanding any sale * * * on account of a general or special tax."

If the provisions of the statute can be harmonized, it is our duty to harmonize them. University of Utah v. Richards, 20 Utah 457, 59 P. 96, 77 Am. St. Rep. 928; Lawson v. Tripp, 34 Utah 28, 95 P. 520; Nelden v. Clark, 20 Utah 382, 59 P. 524, 77 Am. St. Rep. 917.

All provisions must be given effect in spite of apparent conflict if it is possible to do so. Buckle v. Ogden Furniture & Carpet Co., 61 Utah 559, 216 P. 684.

"Differences of time are to be disregarded in construing a code, if by disregarding them, and looking at the work as a whole, harmony can thereby be produced; but if this proves impossible, if, after exhausting every scheme of reconciliation, there still remains a palpable and irrepressible conflict, we are compelled, in the absence of any thing else indicative of the legislative will, to determine it by adopting its latest declaration." Gibbons v. Brittenum, 56 Miss. 232.

Where the first provision of a statute conforms to the obvious policy and intent of the legislature, it is not rendered inoperative by inconsistent provisions in the later provision which do not conform to that policy and intent. In such case, the later provision is nugatory and will be disregarded. 6 Am. & Eng. Ann. Cas., note p. 860; State ex rel. Patterson v. Bates, 96 Minn. 110, 104 N.W. 709, 113 Am. St. Rep. 612; McCormick v. Village of West Duluth et al., 47 Minn. 272, 50 N.W. 128.

If the one interpretation is a more practical solution and gives effect to fundamentals, not present in the other, then that solution should be accepted. The legislative intent is controlling and in the end it is the legislative intent we strive to make effective.

It has been suggested that:

"There can be no doubt that unless the legislature plainly specifies otherwise, the county, either at the expiration of four years from delinquency, at auditor's deed or at May Sale obtains title free from liens."

With this statement we are in accord and the following cases support the position: Robinson v. Hanson, 75 Utah 30, 282 P. 782; Hanson v. Burris, 86 Utah 424, 46 P.2d 400.

Let us see what the practical situation is: No provision has been made for a joint collection of the special assessments for improvements and general taxes. The legislature might have provided for filing with the county tax officers a statement of special taxes due, for a prorata division of the proceeds from the tax sale, or some other adequate or suitable procedure. This has not been done. Nor has any other method been provided whereby the general taxes and special assessments are merged or may be prorata distributed or jointly satisfied. The procedure for each is separate, and joint tenancy is impossible under the procedure provided. Either the general tax lien is superior, and upon its legal foreclosure wipes out all other liens, or the special assessment lien is superior, and when properly and legally foreclosed wipes out all other liens, if the lien, or the results of its foreclosure, remains: " until the tax is paid, notwithstanding any sale on account of a general or special tax." The tax sale does not extinguish a mortgage lien or other encumbrance. Neither does a special assessment lien. It is the final foreclosure of the lien and transfer of title...