*1 58

354 P.2d 1066 PENDER, Appellant, Plaintiff and

Rennold

v. Crockett, J.,C. dissented. al., Mose ALIX et Defendants and Respondents, Intervening BROWN, Leon Plaintiff Respondent.

No. 9167.

Supreme Court of Utah.

Aug. 24, 1960. Pender, Johnson,

Rennold Richard S. City, appellant. Lake Salt Tibbals, Boyden, Croft, & Staten Salt City, Lake for intervening and re- spondent.

HENRIOD, Justice. Appeal from a summary judgment in fa- quiet vor Intervenor Brown in a title ac- tion. Affirmed with costs to Brown. interpreted the statute the same a We received September, In factual way previous cases of similar County to the Lake Salt 'tax hereby import,1 filed a to which reference made. Pender (cid:127)subject property. along property, in which the (cid:127)quiet title suit *2 WADE, McDONOUGH, He parcels, described. and CALLIS- was many other

(cid:127)with defendant, but County TER, JJ., joined Lake as concur. Salt pendens 1948, a lis he filed -not Brown. Later pending suit.

giving CROCKETT, notice of (dissenting). Chief Justice action, in- of Pender’s Brown learned I dissent. tax 1959, July, setting out

tervened n deed, occupancy and continued alleging kept uppermost in mind that should n payment all times after thereon at of taxes judgment; summary a a this is review of years), (for about 17 receipt tax remedy deprives that it is a drastic 78-12-5.2, U.C.A.1953 setting up Title (cid:127)and (cid:127) party opportunity his support of title. his evidence; court therefore and which the extremely grant. should be reluctant answered, generally denying

Pender so, be review- When it the record must does Thereafter Brown Brown’s contentions. light ed in the most favorable to defeat- receipts copies of tax authenticated filed party; ed and wherever the claims of the n thetax deed, face, a its with along on valid dispute, parties as n motion for are in it must be to facts summary judgment, again assumed that claims will be believed. his Title defense to 78-12-5.2 pleading he This so because should be turned out plead did Pender Pender’s claim. Nowhere when, of court without a trial in view- occupancy payment attempt prove or or stated, ing the as above and all n oftaxes record doubts or after en- during the four favor, are he nevertheless resolved Brown obtained his tax deed. suing after prevail.1 not be entitled would circumstances uncontroverted Under such Brown, intervention, herein- Plaintiff in provisions of Title 78—12— applying the plaintiff, is seek- after referred to as thereto, obvious becomes that Pender 5.2 question. property in quiet title four-year limitations to the was vulnerable universally accepted Therefore, rule is that he there was mentioned. statute strength upon the of his own prevail of fact triable and genuine issue sum- no merely upon may rely not the weak- inescapably proper. was mary judgment Young Co., 206, Morris, 1955, 310, 2d 331 8 Utah 1. v. Texas Utah 2d v. Hansen 1. 884; Callister, 1099. Peterson P.2d P.2d 283 1957, 2d 6 Utah adversary.2 Even with stat- grantor of his other He ness help titles, utory provided convey- here- show some now tax source title before a discussed, certainly must show ance him validity. inafter I am has led h> before where justice at least some semblance of a tax title ask is the fairness or the may have the benefit indulging presumption thereof. such a county? Suppose deed were

It cannot be assumed error, made in design?' even evil merely Brown has tax title because of the Would we assume that the must have quitclaim he received from had some title and grantee County, Lake Salt has no credit ex- stand compel the same and the owner cept its own recitals. Absent such an as- disprove the claim Obviously of title? sumption, appears scintilla not one not. competent prove of evidence in the record question I do not County prop-

that Salt Lake is fair and an in- er property any source, pay terest holders their share taxes, which, failing taxes lien Consequently, otherwise. must attach tO' it could convey paid. and stand to Leon until it interest in *3 when the property, taxing the authority tax title or reaches out otherwise. The to possible take the property itself, supposition always it has county that the been held to necessity the an of require- interest in the meeting property ments the gleaned universally has to be of The accepted law. conjecture the that county rule the was stated in the must have case of had some Tintic interest Undine in property Mining the county al.,3 Co. v. rule, because Ercanbrack pre- the clerk et “The therefore, quitclaim preliminary to is all the sumed issue a that require- deed. statute, ments of the made It to me conditions to seems to be a strange concept the exercise right of the power sell, and does to that violence to law logic, leap and and designating the conclusion various county proceedings that the must have which sale, culminate in the had some title or must have been interest in property the strictly complied with,” merely quitclaim quoting because an official other made au- thorities approval. party. third I have never any seen law, any and doubt found, can be It is true the rigid rules requiring support indulgence will the of pre- such proof of steps all in process the taxing sumption. indulge We do not it with establish a tax title when challenged have 2. Mercur Coalition Min. Co. v. Cannon et 561, gee 3. 93 1184, Utah 74 P.2d 1187. al., 13, 112 Utah Petersen, also Fivas v. 280, 5 Utah 2d 635; 300 P.2d Tree White, 110 Utah 233, 171 P.2d 398. ex- that it The fact county grantee. or its years. part of As in recent been ameliorated two sections pressly provided in those the so depression of great the aftermath respect to provide with and to so omitted very difficult to 1930’s, it had when by quitclaim authorized sub-sec- the deeds taxes, legislature in an effort our collect the (8), tion which process our taxing amended strengthen the rely, clearly that there purports manifests process. By relating to the statutes quitclaim that such was no intention 80-10- S.L.U.1939 amended Sec. Ch. county proof alia, would constitute 68, R.S.U.1933, adding, sec- inter property, tax title interest purpose. above designed for the tions otherwise, conveyed any. (5) 59- sub-section of is what is now first 10-64, county auditor the which authorizes an brief manifests Plaintiff Brown’s property sold conveying to execute deeds the above of the soundness of awareness sale, that, providing “when May the at specious and position. In it he makes a * * * deed], and delivered executed [the argument he actually misleading wherein proceed- prima all shall evidence facie of above, portion quotes (5) of sub-section the subsequent preliminary sale that the auditor’s deed shall provides the conveyance property the of of conveyance prima facie evidence of simpleAnd for the same grantee fee grantee, then of provided purpose (7) sub-section of brief, quote jumps part same copy same statute that record "of merely provides (8) to sub-section * ** duly tax sale record- certified purchaser has been no where there office, prima er under the seal of his shall be county, county commission from the * ** evidence the conveyance to facie property, county sell the later decides simple ain fee His to execute deeds. clerk authorized is therein the regularity described all together sections done coupling these proceedings preliminary thereto(Em- imply that lan- a manner as to phasis added.) quitclaim (5) applies to sub-section guage of significance, utmost and it (8), which sub-section authorized deeds *4 persuasive upon point me the in seems to point fails not. But he to obviously does it here, controversy legislature pro- the fact that cognizance of or take to out just vided that the two documents re- language giving no (8) contains sub-section ferred to: the auditor’s certif- deed and the any credit such as thereunder deeds issued prima tax sale should be icate of deemed or the certificate auditor’s deed given the regularity pro- facie evidence the of tax by (5) (7) tax sale sub-sections ceedings vesting of title in or above, language above, correlat- cussed applies only and there is no an to audi- sale, said them. tor’s deed or a (8) sub-section to there certificate of tax evidence, one whit in plaintiff

The Brown failed to except nothing entirely an unwarranted con- referred evidence auditor’s either the jecture, that any lien on ever was tax tax (5) sub-section or the certificate of property; this no and thus there is basis they If (7). sale to in referred sub-section upon which a finding could rest that either prop- have to this been issued with county or the erty, simple matter for have been a would Therefore, kind of title it. tax procured presented copies him to have upon authorities which he as to the relies either and thus or other in evidence one unassailability of his claimed title” “tax the statutes as obtained benefit of application have no here. so, do it is not Having intended. failed to court, nor of the trial function In a further protect purchasers effort to court, proof. to fill hiatus of tax titles and thus bolster the effective- taxing ness of proceedings legislature (5) though (7) Even sub-sections 19, S.L.C.1951, Ch. enacted the so-called admittedly designed discussed above were statute “short titles, (now limitations” 78-12- protect purchase who tax those seq., U.C.A.19S3). et pro- Sec. 78-12-S.2 effect of making ultimate that, vides “no action or defense re- effective, proceedings themselves more * ** covery possession or of real certainly supposed cannot be that the'legisla- be interposed shall commenced against go ture intended so far as confer a of a expiration the holder tax title after the presumption upon anyone of title who mere- of four from the date the sale ly term “tax used the title” or introduced * ** county such tax title own purporting some deed recitals ” * * section, succeeding next 78- establish title. The statute 12-S.3, is even generous more operate only in a tax situation where there is at provides holder. that a “tax semblance of “tax title.” title” least some any title, not, means “whether applicable valid or it could not where there is has been conjecture derived through nothing but or is de- based the as- upon any pendent sale, conveyance, sumption that because the trans- issued a of such fer it must have course of some interest resulting tax statutory from sale. the liquidation proceeding against levied such property, tax where- emphasize I reiterate that in the ab- property is statutory relieved help sence tax pro- tax titles lien/’ for in vided (5) sub-sections and (7) dis- (Emphasis added.) *5 above admittedly that statements conclusive can no doubt not be are There as rigid subject on modify might be desired. How- purposed as statutes were ever, title a might on tax be considered fact one who relied requiring rules pro- the tax trier to the rather than regularity all the affiants prove of credit of plainer nothing expected be ceedings. contrary. hardly be that designed kept not over they than these statutes were would have constant watch that magic words, permit happening property. use simply just was on this what necessity all of sufficient to cast “tax title” and eliminate their statements are Yet something grave proving that claimant doubt of claims Even at resembled one. the most least Brown. language their reading of indicates casual decision, The court’s insofar as it relates they presuppose that before one could important to the instant case is too and benefit, there be some have their modi- gives me no concern because Pender himself proof there of has been tax de- cum upon a also relies claim of which at- linquency words, a tax In other sale. bootstraps” tempts to “lift itself own be at least some semblance of a by relying on recitals his own deed of though may be irregular title” even “tax conveyance legal title, as a foundation for a applicable they invalid. But cannot properly cannot more do than proof a total absence of where there is of latter, plaintiff Brown. But can the any tax title as is case here. proof, of and having the burden having disposed being the case Inasmuch as pretense title, show even failed to judgment, pos- the issue upon summary fail. I reached. Yet deem session is not it not difficulty with the court’s real de- observation: On that to make this amiss I regard is that it sets what here cision solely upon the defendant relies his issue away precedent taking one’s dangerous affidavit, may own the fact trier establishing title thereto with- may not because of obvious self- believe whatsoever, merely any foundation be- out subject has He never interest.4 magic new unwarranted some cause self-serving on the state- cross-examination words, “tax title.” ascribed dispute affi- thereof are ments therein. departure from the radical time- It is witnesses who disinterested davits ques- courts on such attitude neighborhood during honored were they Historically as a stood bul- posses- concerning lack of tions. question heavy against the protection hand wark occupancy of the Their sion Security Co., Page 8 Utah 2d Ins. Federal 4. See authority reached out to when it confis- pendu- taxes. The cate one’s op- appears swung

lum to have now

posite thought underlying extreme. The nothing to be

court’s decision seems *6 sweep stay the onward funds gather purpose

machine whose is to eda- appetite of the satisfy the insatiable taxpayer minotaur, tax;

cious delay at what- hurry pay without the individual rights cost to claim- put the one I would holder. forfeited for proof which meager

taxes to at least the him before al- statutes now demand of

lowing him to establish P.2d HANSEN, Realty F. dba Hansen

Lewis Company, Respondent, Plaintiff and

Ivy SNELL, Appellant. B. Defendant and

No. 9169.

Supreme Court of Utah.

Aug. 16, 1960.