126 P. 394 | Utah | 1912
On the 21st day of October, 1905, appellant commenced this action to quiet the title to a part of lot 6, block 81, plat A, Salt Lake City Survey. The portion of lot 6 in question is the portion markedi “X” in the following plat:
The material and undisputed facts in substance, are: That in June, 1902, appellant commenced a proceeding under our statute in the district court of Salt Lake County against the owners of said lot 6 to condemn that portion thereof marked “X” on the foregoing plat; that when the proceedings were commenced an order was made by said court, which permitted' appellant to take possession of the portion sought to be 'condemned, which it did; that subsequently, on the 26th day •of April, 1904, said court entered its final order or judgment in condemnation, and on payment by appellant of the sum of $13,000, in the language of the decree “as compensation for the land taken and damages‘sustained by the defendants to the remaining portion of the said land,” the title to the portion marked “X” was by said judgment vested in appellant, •and it has used the same continuously for railroad purposes.; that at the time said condemnation proceedings were commenced', and when said judgment of condemnation was entered, and ever since the year 1900, and, perhaps, for some time prior thereto, all of said lot 6 was owned in common, undivided and unpartitioned, by the heirs of one Samuel Russell, deceased; that ini the years 1901 and 1902 all of lot 6 was assessed in the name of “Samuel P. Russell et al.”; that said Samuel P. Russell is one of the heirs aforesaid, and was the owner of an undivided two thirty-thirds of said lot 6; that the taxes for sai-di years of 1901 and 1902 remained unpaid, and the said respondent E. S. Hallock purchased said lot 6 at tax sale from the county treasurer of Salt Lake County, and received a certificate of sale from him; that the assessed valuation of said lot 6, with the improvements thereon, for the year 1901 was $4920, and for the year 1902 $4825, and the taxes for the former year* amounted to $160.67, and for the latter $154.15, which with costs and accrued interest to the date judgment was entered in this case, amounted to the sum of $717.96; that for the year 1903 the property was as
The court entered judgment in favor of Hallock for the sum of $YlY-96, and in favor of Hays for the sum of $239.36. The fact of the redemption of the portion redeemed, as aforesaid, is immaterial for the purposes of this decision, and will not be referred to hereafter. The court decreed the foregoing amounts to' be a lien upon that portion, of lot 6 marked' “X,” and further decreed that, unless appellant paid the whole of said amounts within 30 days from the entry of judgment, the portion of lot. 6 marked “X” be sold, and the proceeds derived from said sale be applied (1) to the payment of costs of sale-, (2) to the payment of the judgment aforesaid, and (3), if any surplus remained1, that the same be paid to appellant.
Appellant has assigned numerous errors, among which are that the court erred in its conclusions of law and in entering judgment as aforesaid. Counsel for appellant also1 insist that the respondents produced no' legal nor competent evidence that said lot 6 was legally assessed for taxation, nor that the taxes in question were legally levied for the several years above mentioned.
It bas often been held that mere irregularities are insufficient to invalidate an assessment and levy of taxes, when the same are assailed in an action like the one at bar. The law which controls the courts in such actions is well stated by the author in Black on Tax Titles (section 442) in the following words:
2 “The maxim, ‘He that seeks equity must do equity,’ requires that a party seeking to have a tax deed set aside as a cloud upon his title to real estate must offer to repay to the purchaser the amount of all taxes and costs paid by him which were a just and legal charge upon the land, with interest; and it is error to set aside a tax sale for mere irregularities, not affecting the substantial justice of the tax, without requiring such payment. And, further, it is not enough to decree that such repayment be made; but the court should make it a condition precedent to setting aside the tax deed.”
A large number of eases in support of the foregoing text are cited by Mr. Black in a footnote, to which we refer the reader without specially citing the cases here.
The contentions, therefore-, that the court, erred in overruling appellant’s objections to the admission of evidence, and that it erred in finding that lot 6 was properly assessed for taxation, and that the taxes in controversy were properly levied for the years aforesaid, cannot be sustained.
The serious question in the case, however, is whether the conclusions of law :and judgment are supported by the undisputed facts. As we have pointed out, lot 6 was assessed as one parcel, upon which the taxes for the years in question were levied before final judgment in condemnation was entered in favor of appellant. Respondents’ counsel therefore contend that the appellant obtained title to that portion of lot 6 marked “X” by virtue of the judgment of condemnation, and that the title was “subject to such liens or incumbrances as were legally attached to the property.” If, for the purposes of this case, counsel’s statements be assumed to be correct, yet the question remains to be answered whether that portion
The undisputed facts in the case at bar are that lot 6 is a large lot containing one and oneTourth acres; that the portion
We are of the opinion that, under the undisputed facts and peculiar circumstances of this case, the appellant should be required to pay such proportion of the whole tax remaining unpaid as the area of that portion of lot 6 which was condemned bears to the whole area of said lot. The facts were all before 'the trial court; and it is an easy matter for that court either to make, or require some one to make, a computation of the 'exact amount of the unpaid taxes, interest, and costs that appellant should pay upon the portion of lot 6 marked “X.” Whatever fraction of the whole of lot 6 the condemned portion amounts to, the same proportion or fraction of the whole of the taxes, interest, and costs should be charged against the portion marked “X.” Before the final judgment of condemnation, the title to lot 6 was in the heirs of Samuel Bussell, deceased, and, ordinarily, they should have paid the taxes upon what was their own. If it be contended, however, that, in view that appellant was in possession and was using the property, therefore it should have paid the taxes, the answer is again obvious, namely, that in any event, under any rule that may be applied, it was only rer quired to pay the taxes upon that portion of which it was in possession, and not also upon that which was owned and in possession of the heirs.
It may be that if appellant had made the respondents parties to the condemnation proceedings that the amount they had advanced for taxes would have been ordered paid out of the condemnation and1 damage money which was paid to the owners of lot 6. Such an order cannot now be made, because appellant voluntarily paid1 the money to the heirs as
The judgment, for the purpose of being modified, is therefore reversed1, and the conclusions of law, so far as they are in conflict with the views herein expressed, are vacated! and set aside. The court is directed to ascertain the exact area that appellant has condemned from lot 6, aforesaid, as compared with the area of the whole of said lot; to make conclusions of law in conformity with the views herein expressed; to enter judgment requiring the appellant to pay into court, within a reasonable time to be fixed by the court, the proportion of the whole tax that the area condemned, bears to the area of lot 6, as hereinbefore indicated; and, in ease appellant shall within said time pay, or cause to be paid, into court the amount fixed and determined by the court as aforesaid, with the accrued interest and costs, then, and ini such event, the court shall enter a judgment quieting the title to that portion of lot 6 marked1 “X” in appellant and in case appellant fails to comply with the orders and judgment of the court, as aforesaid, the court shall either dismiss the complaint at its costs, or, in lieu thereof, may order that that portion of lot 6 marked “X” be sold, and the proceeds of the sale applied as follows: (1) To the payment of that portion' of the whole tax, interest, and costs which is found to be a lien upon the portion of lot 6 marked “X;” and1 (2) to pay the remainder, if any, to appellant. Neither party to recover costs on appeal.