83 P. 361 | Ariz. | 1905
This is an action brought by the territory of Arizona, at the relation of the treasurer and ex-officio tax-collector of Coconino County, against Edward B. Perrin. The action is brought under the provisions of act No. 92, page 148, of the legislative assembly of 1903, to enforce against certain lands the taxes levied thereon for the year 1903. The appellee was in April, 1902, and for some years prior thereto had been, the owner of the lands upon which taxes were sought to be imposed. Said lands were embraced within the odd-numbered sections within the general limits of the Atlantic and Pacific Railroad land grant, and, while not owned by the United States, were within the exterior limits of what was then and is now the San Francisco Mountain Forest Reserve, a forest reserve theretofore duly established by the president of the United States. During the month of December, 1901, and up to the month of April, 1902, appellee had correspondence with the secretary of the interior of the United States, looking to the aequisiton by the United States of the land held by the appellee, that the same might be incorporated in and become a part of the forest reservation. He made a proposition to the department of the interior, offering to relinquish to the United States the lands in question, and to
It is contended by the appellant that, although the deeds of relinquishment were filed and recorded on January 31, 1903, the government took no title to the lands until the deeds and abstracts were approved by the secretary of the interior, and the selection of the lands in lieu of those relinquished were made by the appellee and approved by the land department of the government, and, as such selections and
There is nothing in the act of Congress which makes the vesting of the title in the United States of the relinquished lands dependent upon the selection of the lands granted in lieu thereof. The appellant urges that, this being an exchange of lands, the title does not vest in the government until the selection of the lieu lands has been made and approved. We are unable to agree with this contention. In our view of the statute, the legal title vested in the United States immediately upon the filing for record of the deeds of relinquishment, subject, perhaps, to be divested should the secretary of the interior disapprove the abstracts of title. The consideration for the grant is the. right, under the law, to select other lands in lieu of those relinquished. After the deed is recorded and delivered, the grantor cannot, by any act of his, encumber the title as against the United States. He has no right to the land which he can enforce.
We have carefully examined the opinion of the supreme court in the case of Cosmos Exploration Co. v. Gray Eagle Oil Co., supra, relied upon by appellant, and find nothing therein in conflict with these views. The question there presented was the time when the title vested to lands in lieu of lands relinquished, and the court held that such title vested
There is another reason why this action must fail, at least 'as to the greater part of the lands involved. The secretary approved the abstracts of title, and, so far as the record discloses, the selection of the lieu lands, in April, 1903. Under the provisions of the laws of Arizona, the tax-rate is not fixed until the third Monday in August of each year, and the levy and assessment is not completed until the duplicate assessment-roll is prepared and certified, as provided by chapter 5 of title 62 of the Revised Statutes of Arizona of 1901. When in April, 1903, the secretary of the interior approved the abstracts of title to the lands, and, so far as • the record shows, the lieu selections were made and approved, all had been done that even the appellant contends should be done to vest the full legal and equitable title in the United States. Lands acquired for public purposes during the period between the first and final steps of taxation are exempt from taxes levied during the year in which they are acquired. Bannon v. Burnes, (C. C.) 39 Fed. 892; Gachet v. City of New Orleans, 52 La. Ann. 813, 27 South. 348; Buckhout v. City of New York, 176 N. Y. 363, 68 N. E. 659. And this is true even where, as in this territory, the legislature has declared that a lien for taxes shall attach at a date prior to the time when the first steps are taken to subject the real estate to taxation. There can. be no real or effective lien until the amount of the taxes is ascertained and assessed. “In the nature of things, no tax or assessment can exist, so as to become an encumbrance on real estate, until the amount thereof is ascertained and determined.” Black on Tax Titles, sec. 189; Dowdney et al. v. Mayor etc., 54 N. Y. 186. And see Gillmor v. Dale, 27 Utah, 372, 75 Pac. 932. Under such provisions of law, when the rate of taxes is fixed and the amount determined and levied, the lien for such amount relates back and attaches as of the date specified in the statute. McLaren v. Sheble, 45 Mo. 130; Reeve v. Kennedy, 43 Cal. 643; Cochran v. Guild, 106 Mass. 29, 8 Am. Rep. 296; Gillmor v. Dale, 27 Utah, 372, 75 Pac. 932. In the ease at bar, tV lands having become the property of the United States at the time the taxes were levied and assessed, and no longer subject to taxation, the acts of the taxing officers were void and of no effect.