85 P.2d 827 | Utah | 1938
This case presents an old problem, the validity of a tax sale. The action was brought by C.R. Ferguson, hereinafter called plaintiff, against John A. Mathis, as executor of the *444 estate of Mary J. Morrison, deceased, hereinafter called the executor, and Leonard E. Roberts, hereinafter called the claimant, to foreclose a mortgage executed by the executor in favor of plaintiff March 31, 1930. The mortgage was executed pursuant to an order of the District Court of Carbon County, sitting in probate, authorizing such mortgage. In this order of the court and also in the mortgage executed pursuant thereto the property was described as: "Lot 15, Highland Park Addition of Price, Carbon County, Utah, Local Survey."
The mortgage was duly recorded the following day in the office of the County Recorder of Carbon County. The note, secured by the mortgage, due one year after date, was not paid and this action for foreclosure was commenced August 6, 1936. Claimant was made a party to the action as one claiming an interest in the property. His claim is founded upon a deed from Carbon County. The general taxes assessed against the property for the year 1928 were not paid and a purported sale of the property was made to Carbon County in December of that year. The tax remaining unpaid in January 3, 1936, an auditor's tax deed was issued to Carbon County and the property was advertised for sale by the county at the May sale of that year. Defendant bid in the property at the sale for $178.07, being the amount of delinquent taxes for the years 1928, and 1932 to 1935, inclusive, with interest, penalties and costs, and the County issued to him its quitclaim deed. Claimant thereupon entered into possession of the property and remained in such possession at the time of trial, July 2, 1937, and expended $125.35 in improvements and repairs on the property. The trial court entered judgment declairing claimant's title inferior to plaintiff's mortgage lien, decreeing foreclosure of the mortgage and sale of the property, and awarded claimant a first lien on the proceeds of sale for $178.07, the amount paid the county, also $125.35 expended for repairs less $71 collected by claimant as rentals, with interest on such balance at six per cent. Claimant appeals. *445
The only question presented is as to the validity of the tax sale proceedings to divest title. The description of the property in question as it appeared in the office of the County Recorder in 1926 and thereafter until the auditor's tax deed was: "Lot 15, Highland Park Subdivision of Blks 8 and 9, of Section 16, Township 14 South Range 10 East, Salt Lake 1 Meridian," and appeared in the name of Mary J. Morrison as owner. She was the testate of the executor. Highland Park Subdivision, which embraces part of Sec. 16 T. 14 S., R. 10 E. of S.L.M., was subdivided into lots, and platted by R.J. Turner, civil engineer for the owners. The plat was duly acknowledged, certified, approved and recorded in 1912. Such plat gives the dimensions of all lots and assigns to each lot a number. The plat and dedication of the Highland Park Subdivision provided the plat should be known as the "Highland Park Subdivision," and all lots by the names and numbers designated on the plat. Lands so platted and recorded may thereafter be assessed, mortgaged, encumbered or conveyed by describing them only by lot number, as shown on the plat without metes and bounds description and without reference to section, range, or township. Such information is shown on the plat.
The tax sale certificate in 1928 simply described the property as:
"Lot 15, Highland Park Add. Sec. ____ Twp ____ S R ____ E."
The auditor's tax deed and the deed from the County to claimant simply used the description: "All of Lot 15, Highland Park."
The mortgage given to the plaintiff by the executor described the property as: "Lot 15, Highland Park Addition of Price, Carbon County, Utah, Local Survey," and the court order authorizing the mortgage used the same description except it omitted the words, "Local Survey." *446
Was then the description of the property in the tax sale proceedings so indefinite or erroneous as to invalidate such proceedings? The courts have consistently held that if a description in tax proceedings is too vague, too indefinite, to notify the owner that it is his property that is being taxed, and insufficient to inform prospective 2, 3 purchasers as to just what property is to be sold, the resulting tax title after sale is void. Olsen v. Bagley,
Could this description have misled the owner as to the property? Numerous witnesses testified at the trial that this property was in common parlance referred to as Highland Park Addition, as Highland Park Subdivision, and as Highland Park, interchangeably; that there was no other land or place in Carbon County known or referred to as Highland Park, either singly or in combination with other words; that the plat of these lands was the only record or plat of any lands or place in the County using the words Highland Park, singly or in combination with other words and that about Price and vicinity, — it being the county seat and where all these parties lived, — the words Highland Park, singly or in combination with any other words was always understood to mean the platted tract of land of which these lands were a part. No evidence was offered to the contrary.
Furthermore, the plaintiff and the executor in dealing with the property in question, in securing the court order authorizing the mortgage, and in the mortgage which one executed and the other accepted, received and recorded, referred to and described the property as Highland Park Addition of Price. They themselves use the term addition instead of subdivision so neither of them could well be misled by the designation they themselves employed.
In cases in which the description of the property is slightly erroneous but not misleading, the courts hold the description sufficient and the title gained under a tax sale valid. In *448 these instances, the owner is notified, purchaser can determine the tract to be sold, and the governmental agency will not re-assess the same property because it was sufficiently described and so known to have been already assessed. In the Marchants' Realty Case, supra, the land in controversy was in Bazille Roberts' addition to West St. Paul, and was described by lot and block number as being in Bazille Roberts' addition in St. Paul. The description was held to be valid upon a showing that there was no other Bazille Roberts' addition in the city. Here the tax deed was held void but on grounds independent of the description. In Gilfillan v. Hobart, supra, the court said that where an addition was generally known as a part of another addition a description of property under the latter name was sufficient. If the property involved is city property in a particular division of the city, addition or subdivision, the division must be so designated as not to be misleading or uncertain. Standard Drug Co. v. Pierce, supra; Martin v.Smith, supra, and Booth v. Cooper, supra. In the Standard Drug Case, the property was assessed as of the county, giving the owner's name, block, lot, and subdivision. There were two recorded subdivisions of the name but only one contained the lot and block mentioned. The court held the description to be sufficiently definite. Since only one subdivision contained the block and lot mentioned, this faulty description was not misleading. Martin v. Smith, supra, involved a description that might be misleading but the court held it to be sufficient. In this case the lots were assessed as "lots 37-39, in Moore's addition to town of P.; Eugene Martin, owner." Moore's new subdivision in the same town also had lots 37, 38 and 39. The description was held sufficient, parol evidence clarifying it, the court saying:
"We think with the maps and plats of the town of Poplarville any person could, with reasonable certainty, be able to identify the lands described in the assessment and in the tax assessor's deed, because it is certain that the lots 37, 38, and 39, in J.H. Moore's new addition to the town of Poplarville, were not described, nor intended to be described, *449 in the assessment, and likewise in the tax collector's deed; * * *."
In Booth v. Cooper, supra, a description of lots as being in "South Boise, Londoner's addition," while the proper designation was "South Boise, * * * Londoner's First Subdivision," was held not so uncertain as to render the assessment invalid for while the description is not in exact accordance with the name given to the plat containing a description of the lots, still where there is no other plat bearing the name "Londoner's," the land could be easily identified from the description and no one is misled.
If, under the facts in this case, the tax sale is void we cannot well conceive any case in which one would be valid. As we said in Tintic Undine Mining Co. v. Ercanbrack, supra, it is not every little defect that voids a tax sale and a defect that may be vital under one set of circumstances may be harmless under another. The trial court and respondent 4, 5 evidently relied upon the case of Asper v. Moon,
The trial court was in error in holding claimant's tax title void, and its judgment is reversed and the cause remanded to the District Court with directions to enter a judgment in conformity with the view herein expressed.
FOLLAND, C.J., and WOLFE and MOFFAT, JJ., concur.