106 P.2d 163 | Utah | 1940
Lead Opinion
Plaintiff appeals from a judgment and decree of the District Court of Carbon County quieting defendant's title to the surface rights of certain coal mining property. In 1932 the Union Pacific Coal Company was the owner of the property in Carbon County involved in this action. The State Tax Commission in that year assessed the values of the real estate, separately evaluating for tax purposes the surface right of the land and the mineral or coal rights, and certified the same to Carbon County. These values were spread upon the county tax records and all proceedings relative to the levy of taxes were carried out pursuant to law. The Company failed to pay the taxes, and after advertisement for delinquency the property was on January 10, 1933, sold for taxes to Carbon County. Record of the sales was duly noted in the Treasurer's office and a tax sale certificate was filed with the County Recorder. No redemption being made the County Auditor on January 12, 1937, issued to the County auditor's tax deeds. The property was duly advertised and offered for sale at the May sale, but there were no bidders. On June 18, 1937, the County at private sale, for a consideration of $2,000 sold and conveyed to defendants, Staley and Sillitoe, the surface rights to the property. In December 1937 Staley and Sillitoe mortgaged said surface *507 rights to defendant Carbon-Emery Bank for $4,000. On January 11, 1938, the Union Pacific Coal Company for a consideration of $200 quit claimed the real estate to plaintiff, who on February 2, 1938 commenced this action by filing complaint in the simplest form to quiet his title. By both answer and counterclaim defendants asserted title in Staley and Sillitoe by virtue of the tax sale proceeding above noted. Plaintiff by reply joined issue. The cause was tried largely upon record and documentary evidence, and there is no material dispute in the facts. The result depends upon the validity of defendants' tax title. Plaintiff assails the same on four grounds, to wit:
(1) Being mining property, the mineral and surface rights were separately assessed, and should have been separately sold.
(2) The certificate of sale is void because: (a) It does not show the year for which the taxes were unpaid; (b) It recites that the property was assessed, inter alia, for city and city school taxes, when in fact the property is not within any city.
(3) The auditor's tax deed is void because it contains recitals that the certificate of sale shows (a) the year for which the taxes were unpaid, when in fact the certificate does not so show, (b) that the property was assessed for city and city school purposes when in fact it was not in any city, and (c) that the assessment roll was not verified by the auditor as required by Sec. 80-8-7, R.S.U. 1933.
(4) The foregoing voids defendants' title and therefore plaintiff's title should have been quieted. We note them seriatim.
(1) The statutes in effect at the time of the assessment, levy, and sale here involved were Sections 5864, 5873, 5928, 5929 and 5932, Comp. Laws 1917, as amended by Chapter 53, Laws of Utah 1931, and Chapter 139, Laws of Utah 1921. Section 5864 as far as pertinent here provides:
"All other mines or mining claims and other valuable mineral deposits, including lands containing coal or hydrocarbons, shall be *508 assessed at their full value. All machinery used in mining and all property or surface improvements upon or appurtenant to mines or mining claims, and the value of any surface use made of mining claims or mining property for other than mining purposes, shall be assessed at full value. For the purposes of this section, all mills, reduction works and smelters used exclusively for the purpose of reducing or smelting the ores from a mine or mining claim by the owner thereof shall be deemed to be appurtenant to such mine or mining claim though the same is not upon such mine or mining claim. In all cases where the surface of lands is owned by one person and the mineral underlying such lands is owned by another, such property rights shall be separately assessed to the respective owners."
Section 5873, as far as pertinent here, provides:
"* * * mines and mining claims and other valuable deposits including lands containing coal or hydrocarbons including non-metalliferous minerals underlying land the surface of which is owned by a person other than the owner of such minerals, and all machinery used in mining and all property or surface improvements upon or appurtenant to mines or mining claims and the value of any surface use made of non-metalliferous mining claims or mining property for other than mining purposes, must be assessed by the tax commission as hereinafter provided."
Section 5928 declares the assessments made by the Tax Commission to be the only basis of taxation of such property. Section 5929 requires the owner of every coal mining claim or lands containing coal to file yearly with the Tax Commission a detailed statement of all such lands owned 1, 2 by him, by government survey, giving the full value of each claim or legal subdivision of 40 acres, including a detailed list of all tools and machinery, etc., with full value of each separate article, all buildings or improvements upon or appurtenant to such lands; the value of each building or improvement separately stated; and such part of the surface as has independent use, and the value thereof for such use. And then Section 6018, as amended by Chapter 139, Laws of Utah 1921, providing for delinquent sales, declares inter alia the treasurer shall sell to the county all real estate upon which taxes are delinquent and make a record thereof in his office, describing the several parcels *509 of real property as he sold them, "stating the aggregate amountof taxes due on the property therein enumerated, provided thattaxes levied only on a certain kind or class of property for aspecial purpose shall be separately set out." Section 6020, Laws of Utah 1921, provides that the certificate of sale shall state "the aggregate amount of taxes due on said property in one column provided that the [special taxes set out (in Section 6018)] shall be separately set out." It seems clear therefore that the taxes on all interests of the owner are to be stated only in the aggregate, except the special purpose taxes indicated, in accordance with the rule that enumeration of special ones excludes all others. Under our statutes covering general property taxes, improvements are separately valued and assessed, but lumped in the aggregate and sold with the realty for nonpayment of tax, as is also personal property attached to the realty of the owner for tax purposes. As shown above, not only improvements of coal mining lands but all improvements located on other lands and used exclusively in connection with the coal lands are made appurtenant to the coal lands, and the mine sold for such taxes if delinquent.
Plaintiff argues that because the statute calls for a separate valuation or assessment of coal and surface rights, each became a distinct tax entity. By that test improvements should likewise be separately taxed and sold. He further argues that the owners should have the right to pay the tax on either, or redeem either. He might make the same argument with respect to improvements. The fact is that he did not offer to pay the taxes on either nor offer to redeem either, and does not now seek or desire to do so. Had he come in and offered to redeem the surface rights in time, the County might have permitted him to do so. Not having offered, and not now offering to do so, he can hardly complain that he might have deserved this privilege in the past. Deseret Irrig.
v. Bishop,
(2) Plaintiff next contends that the tax title fails because (a) the recitals in the certificate of sale do not show the year for which the sale was made; and (b) the certificate contains recitals that the property was assessed for city and city school taxes, when in fact the property is not 3 within any city. Assuming for the argument that such defects would render void the certificate of sale, it does not help the cause of plaintiff. The certificate of sale is not jurisdictional — neither the right to sell nor the conveyance of title is dependent upon the certificate. Bruno v. Madison,
"owner cannot be concerned as to the form of the certificate given to the purchaser, nor would it be material if no certificate was given at all."
And under a statute similar to ours the Oklahoma court inPentecost v. Stiles,
"The tax sale, so far as the owner of the property is concerned, may be as valid without the certificate as with it."
The certificate of sale is not a muniment of title. The legal title is divested and the property conveyed to the county by the auditor's tax deed, at the end of the redemption period, and by the express provisions of the statute that deed is made prima facie evidence of the regularity of all matters therein recited. Sec. 80-10-66, R.S.U. 1933, being Sections 6030 and 6055., C.L.U. 1917, including the fact that a certificate of sale had been issued, which issuance is prima facie evidence of the regularity of all proceedings up to that time. Sec. 80-10-35, R.S.U. 1933. The certificate of sale involved in this case was very substantially in the form prescribed by the statute, Sec. 80-10-35, *512
R.S.U. 1933, being Sec. 6021, Laws of Utah 1921, p. 382, which section further makes the certificate prima facie evidence of the regularity of all proceedings connected with the assessment, notice, equalization, levies, advertisement and sale of the property, and the burden of showing an irregularity in the proceedings resulting in the sale is upon him who asserts it.Wilson v. Locke,
(3) Is the auditor's tax deed void because it contains recitals that the certificate show the land was sold for taxes for 1932, when the certificate does not show which year; and also that the certificate contains a recital that the property was assessed and sold, for city and city school taxes to which it was not subject, along with other taxes to which it was subject? Sec. 80-10-66 provides that the auditor's tax deed is prima facie evidence of the facts "recited therein." Herein it differs from the certificate of sale, which is not evidence of the things therein recited, but of certain facts enumerated by the statute. Section 80-10-35. These sections, 80-10-35 and 80-10-66, are rules of evidence, and provide that the issuance of a certificate of sale and the *513 recitals in the deed shall be prima facie evidence of the matters indicated by the statute. No further proof is required from the person relying upon the tax sale or title to show the regularity of all proceedings up to and including the sale than the fact that the certificate of sale was issued. So no further proof is required of such person, as to any matters recited in the auditor's deed, than the deed itself. While such matters are established prima facie by the evidence indicated, it is not the only evidence and may be rebutted. So, although the deed contained a recital that the lands were assessed for city and city school taxes, such recital was rebutted by the evidence adduced by plaintiff himself when he put in evidence as part of his case in chief Exhibits D, G, and F, being the assessment, apportionment by the State Tax Commission, the County Assessment Roll, and the County Tax computation on this property, respectively showing it was not assessed as within any city or town, and that no city or city school or town tax was figured or computed or levied against it. So when plaintiff himself resorted to the records, put them in evidence over defendants' objections, and thus conclusively showed that the lands were not assessed for city and city school taxes; and upon the evidence so put in by him, the court found the lands were not so assessed — plaintiff cannot now avail himself of such erroneous recitals in the instrument. There is no claim that there was any irregularity in any of the proceedings, but only that the instruments (the certificate and deed), are void for surplusage in their contents. All the tax proceedings being valid, the property having been sold, and the redemption period having expired, plaintiff is simply out. White Pine Mfg. Company v. Morey, supra.
But there is another conclusive reason why plaintiff must fail in this action. Even if we assume the case most favorable to plaintiff, to wit: that there are informalities and irregularities in the certificate of sale and in the auditor's tax deed, and also assume that the lands were overtaxed because some city and city school taxes had been added into *514 the aggregate amount of tax, there are statutory provisions governing the questions. Sec. 80-11-7, R.S.U. 1933, reads:
"No assessment or act relating to assessment orcollection of taxes is illegal on account of informality or because the same was not completed within the time required by law." (Italics added.)
And Sec. 80-10-38 provides:
"Whenever property is sold for the nonpayment of delinquent taxes, and the assessment is valid in part and void as toexcess, the sale must not for that cause be deemed invalid, nor shall any grant subsequently made thereunder be held insufficient to pass a title to the grantee, unless the owner of the property or his agent, not less than six days before the time at which the property is advertised to be sold, delivers to the treasurer a protest in writing signed by the owner or agent, specifying the portion of the tax which he claims to be invalid, and the ground upon which such claim is based." (Italics added.)
If therefore there was charged against this property an excess tax (city and city school) that does not affect the validity of the sale or defendants' title, plaintiff not having complied with or made any effore to comply with the last quoted section. This is in keeping with the past decisions of this court. As pointed out by Mr. Justice Cherry, speaking for the court in Hatch v.Edwards,
We come now to a consideration of plaintiff's point 3(c), that the sale and tax proceedings must fail because of the claimed failure of the auditor to attach to the assessment roll an affidavit as required by Section 80-8-7, R.S.U. 1933.
It is argued that such section must be literally complied with or the assessment and all subsequent proceedings are utterly void. It has even been held that a variance in the wording of the affidavit is fatal. In Richardson v. Howard,
"A failure to make or subscribe such affidavit, or anyaffidavit, will not in any manner effect the validity of the assessment." (Italics added.)
The statement "or any affidavit," certainly cannot refer to affidavits by the assessor because there is no provision for the assessor making any affidavit other than the one provided in the section itself. Clearly it must refer to other affidavits required by law to be made relative to the tax rolls and records, because it states that the failure to make any affidavit "will not in any manner affect the validity of the assessment." We may note also that the auditor is required to make another affidavit as to the correctness of the assessment roll after equalization has been had, which however is not attached to the roll. Section 80-7-9, R.S. 1933. It would seem however it might be evidence of the correctness and authenticity of the figures on the rolls.
We have a statute, Section 80-11-7, R.S.U. 1933, providing that "no assessment or act relating to assessment or collection of taxes is illegal on account of informality or because the same was not completed" in time. Idaho has sections like our 80-8-7 and our 80-11-7, which have been construed by the Supreme Court of that state a number of times. In the case of Stewart v.White,
"It was held, in effect, * * * that there is an enforceable obligation to pay a general annual tax, which in a sense is legal as *517 well as moral; and a lien therefor is established by law irrespective of the irregularities or informalities of the assessment. Even if there were some informalities in the assessment or collection of the taxes upon said land, those were all cured by the provisions of section 1788, Rev. Codes, which section is as follows: `No assessment, or act relating to assessment, or collection of taxes is illegal on account of informality, nor because the same was not completed within the time required by law.'"
And in Armstrong v. Jarron, supra, the same court said [
"In finding No. 5 the court finds that the assessor of said county failed to append the certificate required by section 1727 of the Rev. Codes or any certificate of any kind whatsoever. Section 1727, Rev. Codes, provides: `On or before the first day of July in each year the assessor must complete his assessment roll. He and his deputies must take and subscribe an affidavit in the assessment book, to be substantially as follows.' Then follows the oath in which the assessor or his deputy verifies that he has made diligent inquiry and examination to ascertain all the property within the county subject to assessment, and that the same has been listed and assessed on the assessment book equally and uniformly, and that he has complied with the duties imposed upon him by law. This section is directory and not mandatory and is required for the purpose of making the assessment roll as made by the assessor verify itself as to the truth of the things contained in it, and for the purpose of showing that the assessor has performed his duties. In said section it is provided: `But the failure to take or subscribe such affidavit as required by this section shall not in any manner affect the validity of the assessment. The making of such affidavit is declared, however, to be a duty pertaining to the office of every assessor in this state' — thus showing the intention of the Legislature to be that the failure to make the affidavit should not affect the validity of the assessment made by the assessor, but would subject the assessor to certain proceedings for failure to perform his official duties. J.R. Lydon, present clerk of the district court and ex officio auditor and recorder, and who held the same office in 1906, testifies that the affidavit required by sections 1724 and 1727 was not appended to the assessment at the time the assessment book was delivered to the tax collector, but was attached on the 7th day of March, 1911. It was an oversight. He had done it on all previous assessment rolls. This finding of the trial court, therefore, would in no way affect the validity of the tax sale or the tax deed or the appellant's title." *518
In the case of McGowan v. Elder,
"Where property is the subject of taxation, and the assessment has been legally made, and there is a default in the payment of such taxes, and the property is sold at tax sale in accordance with the provisions of the statute, such property cannot thereafter escape taxation through some failure of the officer to perform his duty, unless it has actually misled the party to his injury."
And in White Pine Mfg. Co. v. Morey, supra, the court says [
"It has been accordingly held that not all the provisions of the statute with reference to the assessment of property and the sale for taxes are mandatory, but that on the contrary some of those provisions are only directory. * * *
"On the other hand, as above observed, the later authorities are overwhelming to the effect that if the proceeding has been regular and a tax sale has been made in substantial conformity with the law that the time within which the landowner may redeem is fixed and limited by the statute, and that after the expiration of such period he has no right of redemption, whether a deed has issued or not."
The Oklahoma Court in Re Rolater et al.,
"The failure of the assessor to verify the assessment roll was not such an irregularity as to render the assessment void. In the case of the Board of County Commissioners v. Field
[
"`And if in fact the affidavit required by said section were not attached to the assessment roll, the failure of the assessor to make said affidavit and attach it would not render the tax illegal nor entitle the plaintiff to any relief in this proceeding. The requirement in this regard is directory, and the failure upon the part of the assessor to attach said oath to the assessment roll is an irregularity merely, and will not defeat the tax in a collateral proceeding.'
"It is urged by counsel that the instant case does not fall within the rule announced in that case, for the reason this is an appeal, a direct proceeding, and that was an injunction suit, a collateral proceeding. The language, `and will not defeat the tax in a collateral proceeding' *519 is merely an application of the conclusion that the requirement is directory to the facts of that case."
Other cases holding the absence of the oath is a mere irregularity and does not vitiate the roll are Wallapai Mining
v. Territory,
There is another reason why plaintiff must fail on this point. Under our statute the certificate and auditor's deed are prima facie evidence of the matters as pointed out above, and the burden is upon the person who assails them to prove the defects. When defendants here put in evidence the certificate and deed they made their case unless the plaintiff could show irregularities to upset the title. To show there was no valid assessment, he must prove that fact. He did not sustain that burden. He rested content upon the single statement by Mrs. Oberto, the present treasurer, that on the day of her testimony, October 3, 1938, there was no such affidavit attached to the assessment roll for 1932. No effort was made to show there had been no such affidavit attached nor to show the affidavit was not on file at that very time in the office. As against the presumptions declared by the law the court could well have found, as it did find, that the rolls had been properly verified in 1932. But before this question was asked and answered, plaintiff as proof of certain other facts essential to his claims, had put in evidence over defendants' objections the assessment roll covering these lands and the tax computations upon them for 1932, the year in question; and even after the question *520 now under consideration was before the court and the witness had answered as indicated above, plaintiff had Mrs. Oberto testify from the rolls and submit computations based upon them, which evidence was in support of other allegations and claims to sustain his case, and not designed to disprove the presumption of a valid assessment. The evidence a party puts in the record may conclude him and he cannot be heard, as is apparent here, to put the tax rolls in evidence as a valid assessment to show an auditor's deed and certificate of sale invalid because of a claimed departure from the assessment, and failing in that shift to the position that the roll is not competent evidence of an assessment having been made. (Even in this day of automobiles one cannot play "horse" with the court.)
What then is the purpose of the affidavit required of the auditor? What is the purpose of any oath of verification? Clearly to make the record prove itself. Such affidavit establishes the genuineness of the record without other proof. It is like an acknowledgment on a deed or other instrument required for recordation. But the absence of a notary's acknowledgment on a deed does not vitiate the deed. It merely necessitates other proof of its genuineness. So with these statutory oaths of officers to public records. They are verifications which prove the instrument, and establish their prima facie accuracy. If one had need to resort to the assessment roll to prove a fact shown thereby and the roll was not verified, it may be the roll would not become competent evidence. Like the record of an unacknowledged deed or mortgage, not being verified so as to entitle it to recordation, it perhaps imparts no notice, but as between the parties concerned it is effective. Since however the regularity of tax proceedings is assumed or proved prima facie by the fact of a sale and auditor's deed, and the burden of disproving any irregularity is upon the person assailing the tax proceedings, lack of verification of records would militate against the attacker rather than the holder of the tax title. If the tax title claimant, as was our rule at the time of *521
Wall v. Kaighn and other early cases, had the burden of proving the validity of all tax steps, so he must rely on the record and not the presumption set up for him by the statute, the absence of the auditor's affidavit to the roll might affect him. Such is the case in the decisions cited by Mr. Justice WOLFE. We will note many of them briefly. In California at the time the cases ofMiller v. Kern County,
One further comment seems in order. As to those cases cited by Justice Wolfe to the effect that until the affidavit of the auditor is properly made the treasurer is without jurisdiction to send out notices, charge against property, or collect any taxes — they seem to be answered by the Supreme *523
Court of California in the second appeal in Miller v. KernCounty,
"The making and attaching of these affidavits to the assessment book is required, as stated by this court upon the former appeal, for the purpose of authentication. They are `acts relating to the assessment or collection of taxes,' beyond doubt. Section 3885 of the Political Code is as follows: `No assessment or act relating to assessment or collection of taxes is illegal on account of informality, nor because the same was not completed within the time required by law.' There was not an entire failure to perform the acts of making and affixing the affidavits. They were properly made and affixed, but not within the time specified in the Code. No injury was caused, and we cannot see that any injury could be caused, by the delay. By the express language of section 3885 the delay did not make the affidavits or the assessment in question illegal. They were lawfully made and attached, and if the assessment was previously invalid for lack of them, as had been, in effect, decided for the purposes of this case, it became valid and lawful the moment they became attached to the book on November 1, 1895. This is a reasonable doctrine, and we perceive no benefit, public or private, to be derived from holding the contrary. It is fully supported by the decisions in similar cases. Buswell v. Supervisors, 116 Cal. [351], 354, 48 P. 226; People v. Eureka, etc., Co., 48 Cal. [143], 146;Hart v. Plum, 14 Cal. [148], 155; Payne v. San Francisco, 3 Cal. [122], 126; State v. Mining Co., 15 Nev. [385], 388;State v. Western U.T. Co., 4 Nev. [338], 344; Walker v.Edmonds, 197 Pa. [645], 647, 47 A. [867], 868; Hooker v.Bond, 118 Mich. [255], 257, 76 N.W. [404], 405; 1 Cooley on Taxation (3d Ed.) 486."
See also McGowan v. Elder, supra.
Bear in mind that in the case at bar no claim of injury or prejudice is made. There is no claim made that the lands were not properly assessed, and plaintiff himself put the assessment roll in evidence to prove a proper assessment. It is merely claimed there are informalities in certain instruments and records. We therefore resolve this point against appellant. *524
(4) What we have said answers the fourth question. The matters upon which plaintiff relies do not void defendants' title. But if they did so, plaintiff could not have his title quieted because he admits a valid assessment and tax levy 4 against the property, its nonpayment and a sale thereof. Not having redeemed or offered to redeem, he is not entitled to have his title quieted against either the county or its assignees, the defendants. Defendants' tax title notwithstanding plaintiff's assault was properly quieted.
Judgment of the District Court is affirmed. Costs to Respondents.
MOFFAT, C.J., concurs.
McDONOUGH, J., concurs in the result.
Dissenting Opinion
I agree (1) that where mining property is involved, all the mining property, to wit: mining claims, mineral deposits, workings, machinery used in connection therewith, and all buildings and surface improvements upon or 1 appurtenant to the mines or mining claims whether on or off the claim, and all mills, smelters, refineries or reduction works used exclusively for the purpose of reducing or smelting ores from a mine or mining claim by the owner thereof, shall be assessed as real estate and as a whole, all parts being considered as a unit for purposes of assessment, levy, and sale.
I agree (2) that where the surface and underlying mineral of a claim or land are owned by the same person as shown by the records, they may be advertised and sold as one, even though assessed separately. The reason for this is that where the surface property has adaptability for other than 2 mining purposes and is actually used for such other purpose, it has an additional assessable value which should be shown in the same manner as improvements *525
are required to be shown in the assessment. Barnard Realty Co.
v. Butte,
Although this court seemingly held differently in Utah CopperCompany v. Chandler,
I agree (3) that a tax sale is not void merely because the certificate of sale is defective, hence failure to show the year on the certificate or inclusion of mere surplusage will not invalidate a sale which may be otherwise proven. 3Bruno v. Madison,
Sec. 6021, C.L. Utah 1917, as amended by Chap. 139 Laws of Utah 1921, provides, as far as material here:
"The certificate of sale herein provided for, when signed by the county treasurer and delivered to the purchaser, shall be prima facie evidence of the regularity of all proceedingsconnected with the assessment notice, equalization, levies,advertisment, and sale of the property therein described, and theburden of showing any irregularity in any of the proceedings,resulting in the sale of property for the non-payment ofdelinquent taxes, shall be on him who asserts it. * * *" (Italics added.) *526
(Note: In 80-10-35, R.S.U. 1933, a comma appears between the words "assessment" and "notice." Query: Under Sec. 6021, C.L. 1917, was the certificate prima facie evidence of a regular assessment?)
Assuming, for the instant, that the certificate is prima facie evidence that the steps mentioned above in Sec. 6021, C.L. Utah 1917 have been taken rather than evidence only of their regularity, can it be said to be prima facie evidence of a step when the certificate itself recited contrary-wise or is silent or ambiguous regarding that step? Can it be said, for instance, that it is prima facie evidence of a sale for the taxes of a certain year when the year is not mentioned? If so, it would seem that one would have to do nothing more than to introduce a certificate of sale in which the property was described, even though inadequately, and all the steps mentioned above would be proved regardless of the recitals. And if a skeleton certificate may serve that purpose how scanty a skeleton may it be? If oral evidence to supply the year omitted could be given to aid the certificate of sale as evidence, why not oral evidence of a misdescription or oral evidence to supplement an inadequate or ambiguous description in order to make the certificate prima facie evidence that all the steps had been taken? Regarding the failure to recite the year for which the tax was levied, the Supreme Court of Idaho in White Pine Mfg. Co. v. Morey,
"The tax certificate recited that the tax for which the sale was made was levied and assessed for the year 1903, while the deed fails to show the year for which this tax had been levied and assessed. While this fact would not impair the sale or the validity of the certificate, it would impair the deed and render it inadmissible as evidence of compliance with the law."
I am inclined to the view that the certificate of sale must properly describe the property and the taxes (by naming the year for which levied) for the non-payment of which the sale took place, before it can be used as evidence. Brink *527
v. Dann,
It does not clearly appear in the case of Burton v.Hoover,
As far as using the certificate as prima facie evidence that the steps leading to it were properly taken, the description should be adequate and not ambiguous. Therefore, the certificate in this case may have been improperly admitted as proof of the fact that those steps had been been taken, but as the opinion suggests, plaintiff may have cured the error by himself introducing evidence of the assessment, levy, notice of advertisement of delinquencies, etc. In the case of Wall v.Kaighn,
Sec. 80-10-38, R.S.U. 1933, relating to assessments void in part, was taken from California Political Code, Sec. 3811, which was repealed in 1895, and was never construed by the courts in that state. There might be some question whether this section would apply to a sale for city and city school taxes which presumably had never been assessed upon the land, and whether a certificate so reciting would not show an unauthorized sale. For an instance where property was sold for a tax which hadnever been levied, see Fish v. Genett, 56 S.W. 813, 22 Ky. Law Rep. 177.
I agree also (4) that if the steps leading to the sale and the sale itself were properly taken the fact that an improper auditor's deed was given would not aid plaintiff if his time to redeem had run out. There might still remain the question, however, of whether the period of redemption 4 would expire until a deed sufficient to convey title had been executed — a question with which I need not now be concerned. Therefore, it is unnecessary to determine whether the auditor's deed was valid or void, since in any case if the proceedings to, and including sale for, delinquency were substantially followed plaintiff would possess only a right of redemption thereafter. The title could not be quieted in him. But query, under Fisher v. Davis,
But what has been said in the opinion about the plaintiff's failure to offer to redeem is irrelevant and gives the impression that something was waived because of failure to assert a right. A tax sale, void because of excessive charges or for other reasons, would not become valid because the owner had not offered to redeem. And if the sale was valid no penalty attaches for failure to offer to redeem. What happens is that if the period of redemption runs out all rights are cut off. It is inaccurate to give the impression that if plaintiff had "sought to exercise" the right of redemption, he could then "complain" if the sale *529
was invalid. If the sale is invalid he need not move to correct it on peril of losing his right. If valid, the right of redemption is lost automatically on expiration of the period. In the case of Intermill v. Nash,
But this is not a suit to redeem. As was said by the New Jersey Court in Welles v. Schaffer,
"A bill to redeem proceeds upon the assumption that the purchaser has a valid, inchoate, but defeasible, title by virtue of the certificate, and the only issue which the court can entertain and decide is whether the right to redeem is still open to the complainants."
This is a suit to quiet title and proceeds upon the theory that the original sale is void. The opinion states in regard *530 to the efficacy of the recitals in the tax deed to furnish proof of their having been performed:
"So no further proof is required of such person, as to any matters recited in the auditor's deed, than the deed itself. While such matters are established prima facie by the evidence indicated, it is not the only evidence and may be rebutted. So, although the deed contained a recital that the lands were assessed for city and city school taxes, such recital was rebutted by the evidence adduced by plaintiff himself when he put in evidence as part of his case in chief Exhibits D, G. and F, being the assessment, apportionment by State Tax Commission, the County Assessment Roll, and the County Tax computation on this property, respectively showing it was not assessed as within any city or town, and that no city or city school or town tax was figured or computed or levied against it."
Sec. 80-10-66, R.S.U. 1933, reads as follows:
"* * * shall recite substantially the amount of the tax for which the property was sold, the year for which it was assessed, the day and year of sale, the amount for which the real estate was sold, a full description of the property, and the name of the county or assignee; and when duly executed and delivered by the county auditor shall be prima facie evidence of the facts recited therein."
This section provides what shall be substantially recited in the tax deed and makes those required recitals prima facie evidence of the facts thus required to be recited. It is not required that the tax deed recite the different taxes levied against the property but only the amount of tax for which the property was sold. Hence, a recitation not only of the amount of the tax for which the property was sold but the sort of taxes levied which constituted the aggregate tax was not necessary. InPrice v. Barnhill,
"A statement in a tax deed of a fact showing that it was improperly issued is fatal to its validity, although occurring in the course of a recital not required by statute."
In Ball v. Busch,
"The legislature did not intend to say that a paper shall be held prima facie valid, when it carries upon its face the evidence that shows it is void."
Other excerpts are given in Wall v. Kaighn, supra. But these come from cases of an earlier period when the rule of stricti juris was more rigidly applied. In this case the tax deed recited as a fact something which was not in fact true. The plaintiff sought to use the tax deed, not to prove the facts of which the statute makes the deed prima facie proof, but to show its invalidity. As above stated, such invalidity would not have availed him even if proved. It might serve only to show that he still had the right to reclaim the property. The plaintiff did not seek to use the tax deed to prove that city and city school taxes had been levied but to show that the tax deed was invalid because it recited some fact which was untrue. Hence, all that is said in the opinion regarding the right to rebut a recital in the deed seems to me to be irrelevant. The plaintiff does not claim such fact to be true. He claims it is an untrue recital which voids the tax deed. It is not in the case as a fact to be rebutted but as the statement of something which is not a fact and which, therefore, voids the tax deed. The statement in the main opinion that such matters (untrue, unrequired matters in the deed) are prima facie evidence of their existence is legally incorrect. The tax deed is only prima facie evidence of the facts required to be recited and recited therein.
I now turn to the question: What is the effect of the failure of the auditor to attach to the roll the affidavits required by law?
In California the court has held these affidavits absolutely essential to the right of the collector to enforce collection of taxes in the following cases: Miller v. Kern County,
There are, of course, a number of states wherein it is provided that a tax sale may be avoided only for certain specific causes, as in North Dakota it is provided (Sec. 2193, Comp. Laws of North Dakota 1913) that a tax sale may be set aside only when it is proved; that the property *533 was not subject to taxation, or that the taxes were paid prior to sale, that notice of sale was not given, as required by law, or that the property was not offered for sale to the party who would pay the amount for which the same was to be sold. In Mississippi a tax deed may be invalidated only by proof that the land was not liable to sale for the taxes, that the tax had been paid before sale, or that the sale had been made at the wrong time or place. Sec. 3273, Miss. Code, 1930.
Florida by an Act passed in 1929 provides that property owners are charged with the duty of ascertaining the amount of tax and paying the same before date of delinquency; all provisions of law relating to assessment and collection of taxes are declared to be directory only, for orderly procedure of the officers and not primarily for the protection of the taxpayer; no sale or conveyance is void except on proof that the property was (1) not subject to taxation, (2) that the tax had been paid before sale, or (3) that the property had been redeemed prior to execution of conveyance. Laws of Florida 1929, c. 14572, p. 1100.
Under such statutes the rule would be different from the rule under our statute. Earlier tax decisions stressed the necessity for strict compliance with provisions of the tax statutes on the theory, as stated in Tintic Undine Mining Co. v. Ercanbrack,
I think we should differentiate those matters which are designed to protect the taxpayer in the process of the taxation steps from those which do not touch or affect him in that they are designed to obtain uniform, convenient, and perfected office practice and administration and thus touch the taxpayer only remotely. We should include in the first type, steps such as assessment, notice, sale, etc., and require a strict performance in all matters of substance but *535 allow for omissions or defects which are insubstantial, especially when the taxpayer could in no way reasonably be misled by them — in short, we should adopt a common sense view.
I would think with the great majority of the decisions that the authenticating certificate of the auditor is a matter of substance and for the protection of the taxpayer. It tends to insure care and accuracy and the taxpayer may rely upon it in assuming that all corrections in his favor have been made and that the assessment as it appears over the auditor's certificate is the one finally completed after action by the Board of Equalization. But Sec. 80-5-30 reads that
"A failure to make or subscribe such affidavit, or anyaffidavit, will not in any manner affect the validity of the assessment." (Italics added.)
This section may be read to mean that the failure of the assessor to offer the definitely required affidavit or in fact, any affidavit, shall not invalidate the assessment. It is contained in a chapter which is entitled "Further Duties of County Assessors" and appears, therefore, to pertain only to assessors and not to the auditor's certificate provided for in Sec. 80-8-7. It is difficult, however, to see why the Legislature should intend that the failure of the assessor's certificate should not invalidate the assessment but omission of the auditor's certificate should invalidate a sale. The first seems even the more important as an assurance to the taxpayer. I think Sec. 80-5-30 must be taken as an expression of legislative policy which carries over as to the auditor's certificate. And since this is in accordance with the growing tendency not to declare departures or omissions fatal to the validity of the tax when the taxpayer knows he owes it and has not actually been misled or jeopardized, I shall for the reasons herein expressed concur in regard to this point. *536
I cannot subscribe to the statement that plaintiff cannot introduce the assessment book to show a departure from it by the auditor's deed in order to show that the deed is invalid, and at the same time, or subsequently, attack the assessment itself as invalid. I know of no principle in law which requires a party to elect between or among infirmities. For instance, Sec. 40-3-7, R.S.U. 1933, sets forth the interlocutory decree "shall specifically provide that it shall not become absolute until the expiration of six months from the date of its entry." Assuming this to be a mandate of the legislature, certainly a party could attack the decree on the ground that it did not contain such provision and also on a more fundamental ground that the court never had jurisdiction to make a decree. And in the case at bar I see no reason why the plaintiff cannot say "Even if the assessment is valid the auditor's deed does not comport with it and hence the latter is not valid for that reason, but even if the auditor's deed passes the test of validity in this regard the assessment itself for other reasons is totally invalid." The procedure is simple: The court first determines whether the assessment itself is valid. If not, that ends the matter. If valid, it passes on to determine whether the auditor's deed is invalid for the reason that its recitals do not conform as required by law. If the plaintiff reversed the procedure by first attacking the assessment as invalid and on being overruled then used the assessment, so held valid, in an attempt to show the auditor's deed invalid, we would not think the positions inconsistent. I do not think the order of assertion material. But as said before, proving the auditor's deed invalid would avail plaintiff only to the extent of showing that he still had a right to reclaim his property. Nor do I think it necessary at this time to hold that the auditor's affidavit is only to make the record prove itself. True, it is far narrower than the assessor's certificate which certifies to honest performance of duties in some particularization. The auditor's certificate largely partakes of the nature of an authentication of records *537 since it pertains altogether to acts involving proper recording of the acts of the county board of equalization, the State Tax Commission, and his own acts in reference to the record. But at this time I would not want to say that it serves only the purpose of authentication rather than a broader and more substantive purpose. I do not think this case requires us now to decide that question.
I concur in the result but only in those parts of the opinion as indicated by my discussion above.
PRATT, J., dissents.