Jungk v. Snyder

1. Taxation: Statute: Sale: Validity. Tax sales being made exclusively under statutory authority, the provisions of the statute conferring such authority must be fully complied with, and any substantial departure therefrom, prejudicial to the owner of the property, will invalidate the sale.1 2. Same. Where the statute (Sess. Laws, 1896, chap. 129, p. 423) provides that the name of the owner of the property and his post office^address “so far as possible to obtain same from.... county records or otherwise” shall be entered in the assessment book, the failure of the assessor to avail himself of such information, when the same is easily obtainable, and his assessment of such property in the name of “unknown,” renders a sale of such property after notiee addressed to “unknown,” void.

Appeal from the Third District Court, Tooele County. — Hon. G. W. Morse, Judge. Action to quiet title to a certain mining claim. From a judgment in favor of the plaintiffs, defendant Kimberly appealed. STATEMENT OF FACTS. This is an action to quiet title to a certain patented mining claim known as the “Henrietta,” situated in Ophir mining district, Tooele county, Utah. The evidence shows that deeds were on record prior to the application for a patent showing title in nearly all of the plaintiffs, hut the records of the land office show only three of the plaintiffs made entry for a patent, namely, Adolph Y. Weise, Adolph A. Strohn, and Hugo Huido Reitzenstein, they being the original locators of the mining claim. A patent was issued in due time to these parties together with the others who had succeeded to a portion of Strohn’s interest. The parties who had acquired a part of Strohn’s interest deeded such interest in 1892, to plaintiff Jungk. Defendant Grant Snyder, in the joint answer filed by the defendants herein disclaims any interest in or to said premises. Defendant Kimberly claims title by virtue of a tax deed based upon certain tax proceedings originating in ■Tooele county in the year 1896. While the records of Tooele county, in 1896, and for a long time prior thereto show the record title to the Henrietta mining claim to be in the plaintiffs, Weis'e, Strohn and Reitzenstein, and in the grantors of the plaintiff Jungk, neither the final receipt, patent, nor subsequent conveyances were of record at the time of the commencement of this suit, nor at the time they were offered in evidence. The assessor of Tooele county, in the year in question (1896), was furnished a list of patented mining claims by the State Board of Equalization, and from this list he assessed the property in question for taxes. The assessment was entered upon an assessment roll used in Tooele county that year which was ruled with lines and headings over blanks to be filled by the assessor. These headings and the entries made concerning the property in question were, substantially in the following form: The owners of the Henrietta mining claim were unr known to the assessor of Tooele county. They had never lived in the county, and at the time of the assessment were absent therefrom, and their names and residences were not known to the assessor personally. The collector mailed a notice of the assessment directed to ‘ ‘ Ophir, unknown, Henrietta Claim. ’ ’ On the first Monday in December, 1896, the collector advertised in a newspaper published and of general circulation in Tooele county, a list of delinquent taxes by districts and precincts as required by law. The taxes assessed against the Henrietta mine not having been paid, were listed and advertised as “Henrietta Mining Claim, Lot 87, owner unknown; total tax $1.54. The property was subsequently sold at public auction for tbe sum of $3.84, to pay tbe delinquent tax. One J. B. Hickman, being tbe bigbest bidder, received a certificate of purchase which be assigned to W. C. Hall, wbo, in due time, received a deed to tbe property. Tbe claim and interest of W. C. Hall, was, by mesne conveyance, transferred .to defendant P. L. Kimberly. Tbe court among other things found: “6. That in tbe year 1896, the county assessor in and for Tooele county, attempted to assess for said year in tbe name of ‘Unknown’ tbe above-described premises, and attempted to assess and value said premises for tbe purposes of taxation at the sum of one hundred and three dollars. That tbe said assessor, in making said assessment or any of tbe tax proceedings herein recited, did not give the name of tbe person or persons to whom said property was claimed to be assessed, nor attempt to assess tbe same in any name, except in tbe name of ‘Unknown.’ That from tbe records in tbe county recorder’s office in and for Tooele county, Utah, and through other inquiry, tbe names of tbe owners of said premises could by the exercise of reasonable diligence have been obtained by said assessor, but that tbe said assessor made no search or examination of tbe records of Tooele county for tbe names of tbe owners of said premises, and the evidence herein does not show that any inquiry of any kind was made to ascertain wbo tbe owners of said premises were. That none of tbe owners of said premises were in any way or manner notified or informed of said alleged assessment or tax. “8. That thereafter, and within tbe time allowed by law, tbe board of county commissioners in said county met to examine tbe assessment book and equalize tbe assessment of property assessedpn said county, including tbe allegedassessment herein described,but that neither the county auditor, nor any other person notified tbe owners of tbe premises herein described, nor any of them,, of tbe meeting of said board, nor were tbe owners of said premises in any way informed of the meeting of said board of equalization. “9. That thereafter, on or about the first day of July, 1896, the duplicate assessment roll of said county, duly certified by the auditor of said county, was delivered to the collector of said county for purpose of collection, but that the said county collector did not furnish to the owners nor to any of the owners of said premises, nor leave at their residence, nor the residence of any of them, any notice of the amount' of tax so attempted to be assessed as aforesaid, nor any notice at all. That the only notice of any kind given or attempted to be given by said collector concerning said tax was a notice addressed and mailed to ‘ Ophir Unknown’ and that none of the owners of said, premises were notified or informed of said tax. That the said collector made no effort of any kind to ascertain who the owner or owners of said property might be, and made no attempt to inform any person of said tax, except by mailing a notice to ‘ Ophir Unknown, ’ as aforesaid. ‘ ‘ 15. That the pretended tax proceedings hereinbe-fore set forth and the pretended tax sale hereinbefore set forth were invalid, and passed no title to the defendant P. L. Kimberly. That the defendant, P. L. Kimberly, should be restrained and enjoined from claiming any interest in or to said premises adverse to the plaintiffs, and restrained and enjoined from setting up or claiming or pretending to have any interest under said tax sale or tax proceedings; and that the title of the plaintiffs herein should be quieted.” A decree was entered in favor of plaintiffs in accordance with the foregoing findings. Defendant Kimberly appeals.