151 P. 338 | Utah | 1915
■The' plaintiff brought this action to quiet title. She alleged generally that she was the owner of the real estate and that the defendants claim, but have no right to it; and demanded that they be required to set forth their claim, that it be adjudged groundless, and that the title be quieted in her. The defendants denied her ownership, and alleged title in themselves by adverse possession and by tax sale and deed. Their tax title is pleaded thus:
"That on the 21st day of April, A. D. 1908, the treasurer of the County of Sevier, State of Utah, sold to the defendant Joseph W. Fairbanks the land described in plaintiff’s complaint for taxes which had been assessed against said land in the name of said G. T. Bean, and that on the 10th day of September, A. D. 1912, the said land not having been re
The plaintiff, in reply, denied generally the defendant’s title, both as to adverse possession and tax sale and deed, and, in addition, and with respect to the alleged tax title, that.:
‘ ‘ Plaintiff further denies that defendants, or either of them, purchased said property at a tax sale, as alleged in their said answer, by which they acquired any legal title to said property, and plaintiff alleges that if any sale or purchase was made as alleged by defendants, the same was not in accordance with, but was contrary to, law and void. ’ ’
On these issues the case was tried to the court. The plaintiff showed record title in one George T. Bean and a conveyance from him to her, and rested. The defendants, to support the issues on their behalf, gave evidence respecting their title, and, to support their alleged tax title, put in evidence a tax deed, executed and delivered by the county auditor on the 10th day of September, 1912, to the defendant Fairbanks, showed a conveyance by him and his wife to the defendant Roberts, and rested. The plaintiff then attempted to put in evidence to show the invalidity of the tax sale and deed. The court, on the defendants’ objections, forbade that, on the ground that the plaintiff had not alleged the particulars in which she claimed the tax sale or deed was invalid. The court found that prior to the 21st of April, 1908, George T. Bean was the owner of the property, that on that day the county treasurer, for taxes, sold it to the defendant Fairbanks, and that thereafter the county auditor executed and delivered a tax deed to him, and that he and his wife conveyed to Roberts. The court found against the defendants on the issue of an adverse holding. Based solely on the tax title, the court rendered judgment in favor of Roberts quieting the title in him. The plaintiff appeals.
A motion was made at the last February term to dismiss
The assignment presents the ruling refusing the plaintiff to assail the tax proceedings and tax sale and deed. The ruling was made on the theory that the plaintiff had not, in her reply, averred with sufficient particularity the grounds on which she claimed thp tax sale and deed were invalid. The defendants could have averred ownership in general terms, and then, to support the allegation, could have made proof of a tax title. In such case the plaintiff under a general denial and without specific averments, could have met
Notwithstanding such provision, the authorities are to the effect that one claiming and asserting a tax titl.e against the owner is nevertheless required to allege all the facts essential to the validity of a tax deed. Gage v. Harbert, 145 Ill. 530, 32 N. E. 543; Skelton v. Sharp, 161 Ind. 383, 67 N. E. 535; Durrett v. Stewart, 88 Ky. 665, 11 S. W. 773; Black on Tax Titles, 2d Ed. sec. 462. That is, when one relies on a tax title he must show in his pleading that each step, required by law to be taken to subject the property to taxation and to constitute a valid sale of it for taxes, has been complied with. To that effect also are the decisions of this court. Olsen v. Bagley, 10 Utah, 492, 37 Pac. 739; Eastman v. Gurrey,
Further, the plaintiff, in her reply, averred that the tax sale and purchase “was not in accordance with law, but was contrary to law,” That, of course, was a most general averment; but in the absence of a special demurrer or a motion to make more specific, was sufficient. Snell v. Dubuque, 88 Iowa, 442, 55 N. W. 310; Sanders v. Parshall, 67 Hun., 105, 22 N. Y. Supp. 20, affirmed 142 N. Y. 679, 37 N. E. 825. Especially is that true in view of the defendants’ bad plea of tax title.
The court, after admitting the tax deed evidence, ought not to have shut the door on plaintiff and prevented her from showing that the tax deed or sale was invalid, or that some one or more provisions of the law essential to the validity of the deed had not been complied with.
The judgment is therefore reversed and the case remanded with directions to grant a new trial, and, on proper application, to permit the pleadings to be amended. Costs to appellants.'