194 P. 125 | Utah | 1920
Plaintiff commenced this action against the defendant in the district court for Salt Lake county to recover the price paid by him to the defendant (hereinafter referred to as the county) for certain unpatented mining claims.
It is alleged in the complaint, in substance, that in and for
Plaintiff in his brief and argument makes the statement that he seeks to recover from the county under the provisions of section 2642, C. L. U. 1907 (section 6043, C. L. U. 1917) which reads:
“Any taxes, interest, and costs paid more than once, or erroneously or illegally collected, may, by order of the board of county commissioners, be refunded by the county treasurer, and the portion of such taxes, interest, and costs of the state, cities, and school districts must be refunded to the county, and the proper officer must draw his warrant therefor in favor of the county; provided, that the board of county commissioners, upon sufficient evidence being produced that property has been erroneously or illegally assessed, may order the county treasurer to allow the taxes on that part of property erroneously or illegally assessed to be deducted before the payment of the said taxes.”
Conceding that the unpatented claims purchased by the plaintiff from the county were erroneously taxed and sold as patented mining claims, the fact remains, as shown by the complaint, that the plaintiff was not the owner nor otherwise interested in the mining claims so sold except as a purchaser from the county after the period for redemption of the property from the tax sale had expired and an auditor’s
Under the existing facts and circumstances, as alleged in the complaint, we do not think the provisions of section 6043, supra, may be held to apply. The plaintiff in this action was not a taxpayer in any sense of the word, nor was he a purchaser at the tax sale, nor a grantee or transferee of the owner of the mining claims at the time of their assessment by the county assessor or at any time since, but was at all times until he purchased of the county an entire stranger to the title of both patented and unpatented mining claims. Assuming that all of the proceedings leading up to the sale and the acquirement of the property by the county were regular and legal (and they are so alleged to be by the complaint with the exception that the unpatented claims were erroneously taxed as patented claims), then the county became to all intent and purposes the legal owner of the property upon the passing of the auditor’s tax deed therefor.
It is argued and contended for by the county attorney that the unpatented mining claims were, under the provisions of our Constitution and statutes, subject to taxation, and that the mere fact that through the course of the tax proceedings the unpatented mining claims were treated and regarded as patented claims would not justify a recovery of the purchase price paid for them by the plaintiff.
As we view the present ease, we are not called upon to meet the question as to whether or not the unpatented claims are, in the hands of their claimants, proper subjects of taxation. Regardless of the question whether or not in this state
We are not unmindful that the courts generally have been liberal in applying the provisions of like and similar statutes to ours in cases wherein the owner of property has been obliged to pay illegal taxes in order to protect his property or where a purchaser at a tax sale has failed to receive any consideration for his money by reason of wrongful or erroneous proceedings on the part,of taxing officers, but our at
It is therefore ordered that the judgment entered by the district court against the defendant be reversed, vacated, and set aside, and that the cause be remanded to said court, with directions to proceed in accordance with the views herein expressed. Appellant to recover costs.