Deseret Irrigation Co. v. Bishop , 92 Utah 220 ( 1937 )

I concur, but shall state my own reasons for so doing. The answer of Grant H. Bishop alleges, among other matters, that the county took auditor's deed on March 25, 1931, and that after the county took said deed, the commissioners "did on the 25th day of March, 1931, after giving statutory notice, offer for sale at the front door of the County Court-house at Fillmore, Utah, the said land," etc. Counsel for plaintiff, by stipulation, admitted all of the allegations of the answer up to and including the above-quoted portion. Counsel, I think, did not mean to question the regularity or validity of any of the tax procedure including the allegation of a purported May sale which, by the allegation above quoted, appeared to have been had in March. I think counsel simply desired to place in issue the matter of whether it was not in legal contemplation, Ray Bishop purchasing this land. Neither the prevailing nor the dissenting opinions in the case ofHadlock v. Benjamin Drainage District, 89 Utah 94,53 P.2d 1156, 107 A.L.R. 876, were inconsistent with the principle that the purchaser of the tax title could not circumvent his mortgagee, and, therefore, what in this case is equivalent to a mortgagee, the vendor on an installment contract to sell. If Ray Bishop was using Grant Bishop to buy this land, he would come under this principle.

However, now plaintiff in effect contends that the stipulation admitted that the May sale was made on the 25th of March and that, therefore, it admitted a fact which would show the so-called sale not legal, because not held in May. This can be the only irregularity because it was admitted by the stipulation that the sale was held "after giving the statutory notice."

Let us assume the so-called May sale was made in March and therefore premature. Let us further assume for the sake of argument that the doctrine laid down in the case of Utah LeadCo. v. Piute County, 92 Utah 1, 65 P.2d 1190 (where there was a complete absence of the May sale), applies and that the sale to Grant Bishop is therefore void. What is the real effect then of this supposed invalidity of the sale to Grant Bishop? The county must have the title. By the stipulation it was admitted that the auditor's deed was good. What then are the rights of the plaintiff as compared to Grant Bishop? Under the supposition that there was no valid May sale and that, therefore, under the Utah Lead Case the county had no authority to sell to Bishop, the private sale made to him in December, 1933, was void. So, under this supposition, he holds a void contract of sale but has color of title. Now as to the status of plaintiff: Under the amendment of section 80-10-68, R.S. 1933, made by the 1933 session of the Legislature, which was in effect in December, 1933, the situation regarding titles held by the county through auditor's deeds had changed very materially over that theretofore existing. Not only was it mandatory on the county commissioners to permit "redemptions" after the "period of redemption" had expired (on the face, an inconsistent conception), but the county was compelled to take the bid which yielded the tax, interest, penalty, and costs for the least amount of the property. What became of the part not sold to regain taxes, etc., if only a part of it was sold?

It seems to me reasonable to conclude that they were intended to revert to the owner. It is doubtful whether a county can acquire title to land through tax sale except for the purpose of collecting taxes. Having accomplished that, the purpose of its ownership is fulfilled. Furthermore if the owner up to the May sale could tender taxes, interest, penalty and costs and obtain his property back, certainly it would seem sensible to conclude that the Legislature intended that if only a part of his property sold for such tax and interest, etc., the county was equally reimbursed and the remainder would revert to the taxpayer. This is quite a different situation than that which existed before the amendment of 1933. The cases of Hadlock v. Benjamin DrainageDistrict, supra, Hanson v. Burris, 86 Utah 424, 46 P.2d 400, and Utah Lead Co. v. Piute County, supra, were all decided under situations which arose before the amendment. Whether the county's obtaining its taxes, etc., by the so-called "redemption" of the owner or by a sale of part of the property, worked a defeasance of the county's title as in the cases of payment of a mortgage debt under the old English law, where the mortgagee took title, or whether it gave the former owner only a preference right to buy up to the May sale, it is not necessary to determine. The result abides. The plaintiff, until a valid May sale, has a right to "redeem" or repurchase or work a defeasance, whichever conception one adopts. Consequently, it follows that we have here a case where, on the one side, the plaintiff has lost title to the county and under plaintiff's contention has a right still to "redeem" as against one on the other side who has ostensibly purchased the property from the county, said purchase being void, and yet, who having color of title, may ask as a condition precedent to the removal of the cloud on title or the county's reconveying to the former owner, that he be repaid his purchase price up to the point of taxes, interest, costs, and penalties due by the former owner, and who may have an equitable lien for such outlays. Who as between these two has the better title? As said in the Utah Lead Case, it may be impossible to apply the doctrine of Fisher v. Davis, 77 Utah 81,291 P. 493, to this kind of a situation.

In the Utah Lead Case the county was a party, so it was possible to make an adjudication between the plaintiff, the defendant, and the county in that case as to whom had title, the county having the outstanding title. It may be that after the amendment of 1933, while an auditor's deed gives the county a technical title, the owner's right to redeem until a valid May sale may mean that, in effect, until such May sale, the county merely has a lien just as a deed intended to be a mortgage gives the mortgagee only a lien. These questions are provocative but not necessary of decision. Even under plaintiff's contention that it only stipulated that a May sale was actually made in March and that according to its contention in law the sale was void, the proper procedure might be to send it back requiring the county to be made a party for a complete adjudication.

But I am of the opinion that we must treat plaintiff's stipulation as broad as its intent. The intent seemed to be to admit the May sale as valid and try the case on the issue as to whether Ray Bishop was not in reality the purchaser. And the case was tried on that theory. Plaintiff did not call the court's attention to the fact that it had stipulated that a May sale was made in March and that there was, therefore, no valid May sale on which to predicate a sale to Grant Bishop. In such case, defendants could have shown actually when the May sale did take place. Therefore, whatever the status of a taxpayer's property after auditor's deed and before a valid May sale under the 1933 amendment, the plaintiff on such point must fail.

Can plaintiff win on the real ground it advances, to wit, that the sale to Grant Bishop was one in reality to Ray Bishop and that an estoppel in favor of plaintiff can be urged against Ray and Grant Bishop, as set out, by the writer in his dissenting opinion in the Benjamin Drainage District Case? I have considerable doubt as to this question. But the evidence of collusion between Grant and Ray Bishop being conflicting and the question being in doubt, I think it must rest as found by the trial court, even though an equity case. Hanson v. MutualFinance Corp., 84 Utah 579, 37 P.2d 782; Wasatch LivestockLoan Co. v. Lewis Sharp, 84 Utah 347, 35 P.2d 835; Froyd v. Barnhurst, 83 Utah 271, 28 P.2d 135; Croft v. Jensen,86 Utah 13, 40 P.2d 198; Hoggan v. Price River Irr. Co.,61 Utah 547, 216 P. 237; and numerous other cases.

Where, after reading the testimony, we remain in doubt, then the conclusion of the lower court is placed on the scales and it will weigh in favor of an affirmance. That is the situation in this case. For these reasons, I concur.