Petterson v. Ogden City , 111 Utah 125 ( 1947 )

I concur except as herein stated.

Notwithstanding the invalidity of plaintiff's tax title, he has acquired title thereto from the previous owner which title the court was correct in quieting unless 2, 5, 6 the city now has a valid lien against the property for its special assessments. Section 15-7-48, U.C.A. 1943, provides that:

"Special assessments * * * shall constitute a lien upon and against the property upon which the assessment is made * * * and such lien shall continue until the tax is paid notwithstanding any sale of the property for or on account of a general or special tax."

I agree with the prevailing opinion, on the grounds therein stated, that the special assessment lien has not been lost on any grounds therein discussed except the statute of limitations, on which question I reach the conclusion by different reasoning.

In Crystal Car Line v. State Tax Commission, 110 Utah 426,174 P.2d 984, we held that the summary proceeding of seizure and sale under Section 80-10-29, U.C.A. 1943, is not an action as that term is used in the general statute of limitations and that such proceedings is therefore not barred thereby. We held further that under Section 80-10-1, U.C.A. 1943, every tax has the effect of a judgment against the person, and that such summary proceeding was, in effect an execution on a judgment, and that under Section 104-37-1, U.C.A. 1943, which authorizes the issuance of an execution to enforce a judgment within eight years, and Section 104-37-6, U.C.A. 1943, which authorizes exceptions to that provision, and Youngdale v. Burton,102 Utah 169, 128 P.2d 1053, where we held that an execution on a judgment for the recovery of money may not issue after the expiration of the eight year period, that summary proceeding of seizure and sale of personal property is in effect an execution, and in the absence of a statutory provision to the contrary, may not be instituted to collect a general personal property tax, which in effect is a judgment for the recovery of money, after the expiration of the eight year period.

Under that decision this special assessment being a tax has the effect of a judgment against the person, even though this tax was not created or authorized by that title. The provision of Section 80-10-1, supra, is that,

"every tax has the effect of a judgment."

There is no limitation to taxes levied or created under that title as there is to the next part of the same sentence in regard to liens. This indicates that although the liens therein referred to are only such as are created by that title, the taxes therein referred to are not so limited. The summary proceeding for the sale of property covered by a special assessment tax lien, provided for by the city ordinance, is in effect an execution on the tax which has the effect of a judgment, and unless there is statutory authority for the seizure and sale of this property after the expiration of the eight year period then the city is powerless to enforce its lien.

Section 15-7-48, supra, provides that the lien of a special assessment against the property upon which it was assessed,

"Shall continue until the tax is paid."

This provision is unambiguous and unequivocal, it is not limited nor the force thereof destroyed by the rest of the sentence providing that such is the case,

"Notwithstanding any sale of the property for or on account of a general or special tax."

It is true that this provision did not expressly provide that the summary proceeding under the ordinance might be instituted for the sale of the property covered by the lien after the eight year period had expired. Nor did it expressly provide that in such a case an execution might issue after such time. But the positive provision of the statute that the lien shall continue until the tax is paid, indicates the legislative intent to perpetuate the lien and make it effective until the tax is paid. It is not an unheard of condition that a lien is said to exist without any means of enforcing the same. But it does not seem reasonable that the legislature enacted this statute intending that after the expiration of the eight year period this lien would continue but the city could not enforce it. If that were the intention, why enact the statute at all? I therefore agree that the city still has a lien against this property and it was error to quiet plaintiff's title thereto.

I also agree that the city cannot, as it attempted in its counterclaim, foreclose its lien in this action. I am not prepared to say that under all circumstances it would be barred therefrom under our decision in Crismon v. Reich, 2 Utah 111. We there merely held that,

"when ample powers and means are afforded by statute for the collection of taxes without suit, and when there is no statute providing for suit to be brought for taxes, no action can be maintained therefor."

This does not prevent a suit to collect a tax where it is shown that the statutory means for collection thereof is not ample. However, in any event, an action to foreclose its lien by the city, such as it attempted to maintain by its counterclaim, is clearly an action as that term is used in the general statute of limitations and under our decision in the Crystal Car Line case, supra, this tax has the effect of a judgment and would be barred in eight years after it became due under Section 104-2-21, U.C.A. 1943, which bars an action on a judgment within that time.