Asper v. Moon, 67 P. 409

Asper v. Moon

67 P. 409 | Utah | 1902

BASKIN, J.

This is an action to quiet the title to certain real estate, situated in Salt Lake City, which the plaintiff alleges he owns and is in possession and entitled to the possession .thereof, and that the defendant claims the same adversely to him. The adverse claim set up in the answer is based upon a deed of said premises executed and delivered by the tax collector of Salt Lake county to said defendant, as purchaser thereof, at a sale of the same made by said collector for the delinquent taxes of 1895.

The only question involved is the validity of the tax deed.

This court, in Olsen v. Bagley, 10 Utah 492, 495, 37 Pac. 739, 740, held that “the title to be acquired under statutes authorizing the sale of land for the non-payment of taxes is regarded as stricti juris, and whoever sets up a tax title must show that all the requirements of the law have been complied with.” This case is fully sustained by the numerous cases therein cited, and was expressly affirmed by this court in the case of Eastman v. Gurrey, 15 Utah 410, 49 Pac. 310. The real estate herein, at the time it was assessed and sold, belonged to W. LI. and H. P. Eolsom as tenants in common, each owning an undivided one-half interest, and consisted of more than fifty lots, which were described in the assessment roll as being in Eolsom’s Addition, but the roll failed to show whether this addition was in Salt Lake City. The assessment of the tax was made against “W. LL Eolsom et al.” Said lots were not separately assessed, but were separated into groups, each containing several lots, and as so grouped were assessed, offered for sale, and sold as the property of “W. H. Eolsom et al.” As stated in appellant’s brief, LL P. Eolsom was not mentioned as an owner, and did not have notice of *248either the assessment, the advertisement, or sale. It does, however, appear that W. H. Folsom had due notice of the taxes due in 1895, and that the same were unpaid and had become delinquent. It also appears that a publication of the delinquent list was made by the collector, but in said list, as published, the property in question was described as being in Folsom’s Addition, without naming in what city that addition was located and failed to state, as required by section 2030a, p. 125, chapter, 75, Session Laws 1894, which was then in force, the names of the owners of said property. The names of the owners were .stated thus: “W. H. Folsom et al.” It also appears that one of the lots included had been previously sold to the city, and had been wrongfully assessed, and that, while said lot was not included in this sale to the appellant, the remaining lots were, and no part of the assessment was deducted, although the said lot had been wrongfully assessed. It does not appear that the warrant, under the hand and seal of the county court, attached to the duplicate corrected tax roll, was, as required by section 2029, Compiled Laws Utah 1888, which was then in force, delivered to the collector. Section 2030, p. 53, chapter 40, Session Laws, 1890, which was then in force, provides: “On receipt of the duplicate roll, with warrant attached, from the clerk of the county court, the collector shall proceed to collect the taxes and shall furnish to each taxpayer, or leave at his residence or usual place of business, if known, a notice of the amount of tax assessed against him, and when and where payable, and any and all taxes remaining unpaid after the thirty-first day of October of each year shall be delinquent.” The warrant mentioned is set out in section 2029, Compiled Laws Utah 1888, and commands the collector “to collect from each and every person, firm, corporation or association, named in the tax roll thereunto annexed, the amount of taxes therein set forth opposite their names respectivly,” etc. Until the reception of this warrant the collector is without authority to collect the tax, or *249do the things required by law in collecting the same. Tbe requirements of the statute in this respect are essential, and the appellant has failed to show that they have been complied with. This omission, and the failure to serve, as required by section 2030, before quoted, the said IT. P. Folsom, with the notice therein provided for, the failure to assess the property in the names of the joint owners, and the failure to insert their full names in the list of delinquent taxes published, and to describe said property as being in Salt Lake City, vitiate, under the decisions of this court before cited, all of the tax sales and the deed to the purchaser. And as one of the lots was wrongfully assessed, and the amount of such assessment was not deducted from the amount of the assessment for which the lots classified with said lot were offered for sale and sold, the sale of said lots was void, under said decisions.

It is ordered that the judgment of the court below be affirmed, at appellant’s costs.

MINER, C. J., and BARTCH J., concur.