183 P.2d 161 | Nev. | 1947
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The case was tried to the district court without a jury. The trial court filed a written opinion and decision in which it held that the tax sale to Lyon County was void by reason of the insufficiency of the description in the assessment of the property to Harris, plaintiff herein and former owner of the property, and that the subsequent sale from Lyon County to Jackson was likewise void because the statutory notice of such sale had not been given and because the affidavits of posting and publication had not been filed and because the proper record book had not been kept and for other failures to comply with statutory requirements, and agreed with the contentions of the plaintiffs claiming "the acts and proceedings of the officers of Lyon County as void and in violation of the due process of law clause of the constitution." Motion for new trial was denied and the court signed findings, conclusions, and judgment in accordance with its said opinion and decision, overruled Jackson's objection to the findings and denied Jackson's motion to adopt contrary findings submitted by him. The trial court found, among other things, that Harris and his wife were the owners of the property, that Jackson's claim was without right, that Jackson's allegations that he had purchased the property from the county and that the *343 county at such time was and had been the legal owner thereof, were not true, that Jackson did not acquire the premises from the county and that the deed from the county upon which he relied was of no force or effect. Jackson appealed from the judgment, and from the order denying his motion for new trial. The main question out of which this controversy arises is as to the sufficiency of the description in the tax assessment and subsequent proceedings culminating in the tax sale to Lyon County. If the description is determined to be insufficient the further question arises as to whether such defect is cured by the provisions of sec. 6449, N.C.L. Other questions arise, and the same are disposed of later.
On June 3, 1941, M.R. Penrose, sheriff and assessor of Lyon County, assessed the property to plaintiffs, using the following description: "Filling Station Lot, 300 feet, value $450.00, Improvements $150.00." The property was offered for sale September 14, 1942, for failure to pay the taxes. No other bids being made, the county treasurer bid the property in for Lyon County and certificate of sale was delivered and recorded. No redemption having been made, a deed to the county was executed and recorded September 15, 1944, conveying the property, described as follows: "T.R. Harris Filling Station Lot 300 feet $450.00; Imp. $150.00; four gas pumps $400.00; Mach. $50.00." On October 9, 1944, Jackson filed his application with the county commissioners asking that real property owned by the county and described as "A Filling Station Lot, 300 feet, together with improvements thereon, Fernley, Nevada, formerly owned by T.R. Harris" be advertised for sale. The commissioners instructed the clerk to advertise the property as provided by law. The sale was had November 20, 1944, and Jackson bid in the property for $66.57, there being no other bidder. The county commissioners confirmed the sale at their meeting of December 5, 1944, and instructed the clerk to issue deed, describing the property as: "Filling Station Lot in the Town of Fernley, State of Nevada, together with improvements situate *344 thereon, formerly owned by T.R. Harris." The following day the deed was executed to Jackson in which the property was described as: "Filling Station Lot in the Town of Fernley, County of Lyon, State of Nevada, together with the improvements thereon situate, formerly owned by T.R. Harris." It is conceded that the notice of the last-mentioned sale did not comply with the statutory requirements as to posting.
Respondents contend that the trial court was correct in holding the description to be insufficient to pass the title in the tax sale to the county, and we are inclined to agree with this contention. The arrival at this conclusion has not been made without difficulty. Appellant relies upon sundry general rules as to the degree of certainty required in descriptions appearing in deeds, assessments, contracts, etc., arising in a wide variety of proceedings, including ejectment and quiet title suits where reliance was placed upon tax titles. Such general rules are relied upon as the statement that "the office of a description is not to identify the land, but to furnish the means of identification"; "that that is certain which can be made certain"; that "the designation of the land will be sufficient if it affords the owner a means of identification and does not positively mislead him, or is not calculated to mislead him"; that the description is sufficient "when the owner is enabled to identify the land which is assessed without being misled by the description"; that "minute particularity is not required, any description being sufficient which identifies the particular property so clearly that the owner cannot be misled"; that "if a person of ordinary intelligence and understanding can successfully use the description in an attempt to locate and identify the particular property sought to be conveyed, the description answers its purpose and must be held sufficient"; that the description is sufficient "if by extrinsic evidence it can be made practically certain what property it was intended to cover." These general rules are quoted in some of the texts cited by appellant and mentioned in cases cited by him and in *345 the cases cited in footnotes supporting the texts. It has been necessary to have recourse to virtually every case thus cited in order to determine their value as authority for the rules thus sought to be applied to the facts in the present case. The surprising result is that the rules of law referred to appear to be much broader in their language than required by the facts in the cases in which they are used.
Before discussing these cases it should be noted that the description used by the assessor in the present case gave the following information: The property was assessed against T.R. Harris. It was in the town of Fernley, Lyon County, Nevada. It was described as filling station lot, 300 feet. Its value was given as $450, and improvements $150. The statement that it is a filling station lot affords meager, if any, substantial identification. But one dimension is furnished, namely, 300 feet. The facts brought out in the case indicate that this was frontage, but it could as well have meant depth. No street, lot, block or alley is indicated. We find no mention of any street or street intersection or any tie to any street intersection. We have simply a lot floating in space within the town of Fernley, and having one dimension of 300 feet. In not a single case in which the description was held sufficient in a tax assessment under any of the rules above quoted did the description approach in meagerness the description here used.
In Humes v. Bernstein, 1882,
Appellant relies strongly upon Ontario Land Co. v. Yordy,
Ontario Land Co. v. Wilfong,
The description in Green v. Palmer,
E.E. McCalla Co. v. Sleeper,
Appellant also cites People v. McCreery, 1868,
In Keely v. Sanders,
In Cooper v. Holmes,
In Langley v. Batchelder,
Morton v. Sloan,
The same is true of the case of Schainman v. All Persons, and Schainman v. Hunter,
Appellant relies particularly upon these California cases for the reason that the block books used under authority of the board of supervisors in the California cases are said to correspond with the assessment cards used by the assessor of Lyon County. Even though there may be some analogy in such use, the fact remains that in the California cases referred to the property was actually assessed by lot and block numbers, as distinguished from the assessment in the instant case of "filling station lot 300 feet" assessed to T.R. Harris, Fernley, Nevada.
Ehret v. Price,
Lehman v. Pierce,
In Craven County v. Parker,
There are few cases in this court on the subject matter. Appellant cites State v. Wells Fargo Co.,
1. In State of Nevada v. Real Del Monte Mining Co.,
Terry v. Berry,
As has been noted, the statutes of some of the states indicate the nature of the description required in an assessment. The Nevada statutes throw but little light upon the exact nature of the description that the assessor is required to use in making his assessment. Under Nevada Compiled Laws, sec. 6423, every person is required to deliver to the assessor under oath a list of real estate owned by him, etc. "which list shall particularly describe each tract of land and each city or town lot contained therein (so that the same may be found or known by such description) * * *." Section 6447, requiring the county treasurer to advertise for sale property upon which delinquent taxes are a lien, requires him *352 to give a notice containing "the description of the property on which such taxes are a lien and which will be sold for the payment thereof." Section 6448 requires the treasurer to give the purchaser at tax sale a certificate containing, among other things, "a description of the land sold." If the property is not redeemed, sec. 6449 directs the treasurer to give the purchaser "a deed of the property." Certainly some kind of "description" is clearly indicated, and the so-called description under which the property was assessed in the present case falls as far short of being an identification of the property as almost any description that could be cited as an example.
2-6. Appellant maintains that on the back of the assessment roll the assessor platted the property in question. However, the assessment made no reference to such plat. Appellant contends also that this parcel, comprising approximately one acre, was deducted from the assessment to appellant's predecessor, one Erquiaga, whose assessment was reduced from 66 acres to 65 acres. It is difficult to see how such fact can relieve the insufficiency of the description. He also maintains that the lot so assessed was the same property described in a certain deed from Erquiaga to Harris. Such fact, however, does not appear in the assessment. He also insists that the fact that the name "Harris Service Station" appeared upon the property (at least at the time of the trial) served to identify it. We do not consider this fact a sufficient identification, nor did such fact appear on the assessment. It is also asserted that as there was no other property "in the vicinity" used as a filling station, the term "filling station lot" sufficiently identified it. This does not follow.
7. In holding, as we do, that the description in the present case was insufficient to support a valid assessment, we find it neither necessary nor proper to promulgate a set of rules for the assistance of county assessors in their description or "identification" of property assessed on their rolls, nor do we imply that a complete and perfect description is essential. We are unable. *353 however, to agree with appellant's statement that "the most that can be claimed here is that the description was abbreviated."
8-10. Respondents rely upon the general rule of law recited in 51 Am.Jur. 636 as follows: "It is inherently essential to the validity of an assessment of real estate that the assessment contain a description of the property sufficiently accurate and certain to enable the owner readily to identify it as his and to furnish a basis for the tax lien and for proceeding in rem against the tract, should such become necessary for the collection of the tax." It is further stated: "A description in an assessment which is inherently defective cannot be supported by extrinsic evidence, and the fact that the owner was not actually misled does not validate the assessment." The rule itself presents no great difficulty. It is in the application of such rule to the description used in each given case that has in most instances caused the courts the greatest concern. It is natural that cases involving varying degrees of certainty (or uncertainty, depending upon the point of view) as to the description have not been uniform in applying the rule. The degrees of uncertainty of description range from an assessment with an absolute lack of description to cases in which the description was claimed to be invalid because the degree of variation from the magnetic north was not recited. It would be futile to attempt to draw a conclusion from all of the cases which could serve to govern all future cases or even to govern the instant case. We can only conclude that the description given by the assessor in this case was inherently defective and insufficient to support the tax sale. In the annotation appearing at 67 A.L.R. 890, well over a hundred cases are digested in which tax sales were held to be void (in some cases voidable), for insufficiency of the description in the notice of tax sale, and in almost all of such cases the description serves far better to identify and describe the property than that appearing in the instant case. The author of the annotation says: "The general rule is that the *354
description of property in a notice of tax sale must be sufficiently definite and certain to make the land attempted to be described capable of identification, and an insufficient description in such a notice will render the tax sale certificate and tax deed based thereon void." Each case presents, of course, a distinct fact situation, and each separate description must be considered to determine its sufficiency. We are not dealing with the insufficiency of the description to fix the owner's personal liability for the taxes, but with cases where the proceeding is in rem. Nor is the situation changed by the fact that such actions to quiet title are often characterized as suits in equity.1 We agree with the often-stated rule that the purpose of the requirement for a description is, first, to give the necessary information or notice of the tax assessed against the particular parcel, to the taxpayer himself; second, that the public may know what property is liable for the tax and is to be sold in case of nonpayment; and third, that the purchaser may obtain an adequate conveyance. See American Portland Cement Co. v. Certain Lands,
11. Appellant maintains with great earnestness that respondents may not attack the insufficiency of the description for the reason that respondent Harris himself furnished the description to the assessor. Numerous authorities are cited in support of this rule. The rule itself has been questioned by respectable authority *355
and has been limited by other authorities to cases in which the assessor used "the exact" description furnished by the taxpayer. See 61 C.J. 883 and cases therein cited. Power v. Bowdle,
But it is earnestly contended that the curative portions of sec. 6449 N.C.L. cure any defect in the sufficiency of the description. Said section reads as follows: "§ 6449. If the property is not redeemed within the time allowed by law for its redemption, the treasurer, or his successor in office, must make to the purchaser, or his assignee, a deed of the property, reciting in the deed substantially the matters contained in the certificate of sale, and that no person has redeemed the property during the time allowed for its redemption. The treasurer shall be allowed a fee of three dollars for making such deed, which, together with the cost of acknowledging the same, shall be paid by the purchaser; provided, that when the deed is made to the county as the purchaser the treasurer shall make the deed and the county clerk *356 shall take the acknowledgment without charge; provided further, that such deeds hereafter issued shall be recorded in the office of the county recorder within thirty days from the date of expiration of the period of redemption. If not so recorded, such deeds, and all proceedings relating thereto from and including the assessment, shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate or any portion thereof, where the latter conveyance shall be first duly recorded. All such deeds, whether heretofore or hereafter issued, are primary evidence that the property was assessed as required by law; that the property was equalized as required by law; that the taxes were levied in accordance with law; that the taxes were not paid; that at a proper time and place the property was sold as prescribed by law, and by the proper officer; that the property was not redeemed; that the person who executed the deed was the proper officer; that where the real estate was sold to pay taxes on personal property, the real estate belonged to the person liable to pay the tax; and are (except as against actual fraud) conclusive evidence of the regularity of all other proceedings, from the assessment by the assessor, inclusive, up to the execution of the deed. Such deed conveys to the purchaser the absolute title to the property described therein, free of all incumbrances, except when the land is owned by the United States, or this state, in which case it is prima-facie evidence of the right of possession, accrued as of the date of the deed to the purchaser. No tax heretofore or hereafter assessed upon any property, or sale therefor, shall be held invalid by any court of this state on account of any irregularity in any assessment, or on account of any assessment or tax roll not having been made or proceeding had within the time required by law, or on account of any other irregularity, informality, omission, mistake or want of any matter of form or substance in any proceedings which the legislature might have dispensed with in the *357 first place if it had seen fit so to do, and that does not affect the substantial property rights of persons whose property is taxed; and all such proceedings in assessing and levying taxes, and in the sale and conveyance therefor, shall be presumed by all the courts of this state to be legal until the contrary is affirmatively shown. * * *."
Assuming then that the delinquent tax deed to Lyon County was "primary evidence that the property was assessed as required by law," respondents say that they assumed the burden of proof in the district court and introduced the original records from which it is claimed the insufficiency of the description in the assessment definitely appears, and that they accordingly proved that the property was not "assessed as required by law." Holding, as we do, that respondents are correct in this contention, and it appearing that the provision of the section making the deed "conclusive evidence of the regularity of all other proceedings" has no application here, the curative portion of the section requiring consideration is the last sentence of sec. 6449, as above quoted. In this regard respondents rely upon the rule cited in 61 C.J. 725, to the effect that "want of a sufficient description by which real estate can be identified is generally considered a jurisdictional defect not within the healing power of a curative statute." Such rule seems well supported in reason, and the cases cited in the note substantiate the text. In Manby v. Voorhees,
Under the North Dakota statute the courts were given the power to amend and correct irregularities and defects in assessments, but it was held in Great Northern Railway Co. v. Grand Forks County,
12, 13. We are thus compelled to start from the premise that the validity of the assessment list and of all proceedings founded on it depend upon the condition that such assessment list contain a description of the property intended to be assessed. Such description is essential to its validity. State v. Wells Fargo Co., supra. Under present statutory requirements the sufficiency of such description must necessarily be determined in each case. Without a description the assessment is of no effect as supporting further proceedings resulting in a delinquent tax sale. Patently, this is not affected by the provisions of sec. 6457, N.C.L. authorizing the district attorney in suits to collect taxes to make additional and more certain description than that contained in the assessment roll as he may deem proper, and authorizing him in such case to prove that the property described in the complaint is the same as that described in the assessment roll. Such situation is not involved here, even though we concede the implication that the original description in the assessment, in such suits, need not be perfect.
14. Appellant maintains that the judgment should be reversed because it does not appear that plaintiffs tendered payment of the taxes. In view of what we have said as to the invalidity of the tax sale and in view of the record as it comes to this court, the point is not well taken.
15. Appellant's brief devotes considerable time to a learned discussion of the trial court's finding and conclusion that the tax proceedings culminating in the tax deed to Lyon County deprived the respondents of their property without due process of law. He points out that the only constitutional provision that could possibly have been violated is the requirement that taxation be uniform, and cites Hagar v. Reclamation District,
*362
16. Respondents, in the trial court and in this court, attack the subsequent sale by Lyon County to appellant. The trial court, as noted, held that sale to be void and respondents still contend that it is void, by reason of the failure on the part of the county to give the statutory notice. Appellant insists that if the legal title passed to the county by the tax deed, respondents are in no position to attack the county's deed to him. Holding, as we *363
do, that the purported tax deed to Lyon County was void by reason of the insufficiency of the description in the assessment, it becomes unnecessary to determine such point. See, however, Gold Circle Crown Mining Co. v. Getchell,
17, 18. Appellant further asserts, as grounds for reversal, alleged errors on the part of the trial court in its rulings on the admissibility of certain evidence. These asserted errors were not referred to in the oral argument, and were summarily treated in appellant's opening brief. His closing brief refers only to the alleged error of the trial court in receiving the testimony of Harris that he had received no notice of the assessment. It does not appear that the trial court gave any effect to this testimony or considered a possible lack of notice any ground for holding the assessment invalid. Further objection is made to a ruling made by the trial court refusing to admit in evidence the tax deed to Lyon County without the laying of further foundation. It appears, however, that the trial court thereafter did admit the deed in evidence and gave the same due consideration. We find no material error in these or any other rulings to which exception is taken.
For the reasons given, the judgment and order denying the motion for a new trial are affirmed.
HORSEY, J., concurs.
EATHER, C.J., because of illness, did not participate in the preparation and rendition of the foregoing opinion.