Huntington City v. Peterson , 30 Utah 2d 408 ( 1974 )

ELLETT, Justice:

This appeal is from a judgment quieting title in the respondent (defendant) to a forty-acre tract of land in Emery County, Utah, lying contiguous to the city limits of the City of Huntington in said county.

Huntington City received a warranty deed to the land in question on April 7, 1959, and thereafter the property was not subject to taxes.¹

Section 59-5-4, U.C.A.1953, requires the county assessor prior to April 15 of each year to assess all property within his county to the owner thereof as of January 1 at twelve o’clock noon. A tax upon real property is a lien against the property assessed and attaches as of January 1 of each year.²

The record does not show that there was any assessment made by the county assessor prior to the sale to the city. While the deed to the city was not placed of record until May 21, 1959,. the ownership by the city was effective when the deed was delivered. The recordation of a deed is of no importance insofar as the passing of title is concerned except where an innocent third party may purchase, mortgage, etc., for value from the seller.

The rate of tax to be levied and collected by the state must be set during the first week of August of each year and by the counties between the last Monday in July and the second Monday in August of each year.

Until levy and assessment are made, there is no tax lien on realty; but when made, the tax relates back to the owner as of noon, January 1st of the taxable year.'

The Emery County assessor assessed the land to the grantee of the deed to the city, and the levy for taxes was made in August following. No taxes were assessed thereafter. However, the county made a preliminary sale of the property in question for 1959 delinquent taxes on January 10, 1960.

No notice was ever given to the city of the purported delinquencies, and on May 26, 1964, a tax deed was issued by the county to Mrs. C. W. Peterson for the sum of $3.44.

The city purchased the land for use as a garbage dump, and such has been its use ever since. While the city does not operate a garbage collection system, its citizens have used the dump, and the city has maintained the road into the dump and has expended money in covering the garbage refuse as occasion required. The city has expended money in connection therewith as follows:

November, 1959 Nielson Bros. Construction $202.00

November, 1960 Nielson Bros. Construction 16.0Q

November, 1962 Ferris Grange 6.25

March, 1964 Nielson Bros. Construction 39.00

September, 1966 Nielson Bros. Construction 32.00

October, 1968 Nielson Construction Co. 37.50

January, 1969 Nielson Construction Co. 45.00

January, 1969 Scott McArthur 12.00

September, 1972 Dean Atwood 51.20

The respondent claims that the city is barred from its claim to title by the provisions of Section 78-12-5.2 U.C.A.1953 (1973 Pocket Supplement), which reads:

No action or defense for the recovery or possession of real property or to quiet title or determine the ownership thereof shall be commenced or interposed against the holder of a tax title after the expiration of four years from the date of the sale, conveyance or transfer of such tax title to any county, or directly to any other purchase thereof at any public or private tax sale. .

The city relies on a proviso in that section which says:

Provided, however, that this section shall not bar any action or defense by the owner of the legal title to such property where he or his predecessor has actually occupied or been in actual possession of such property within four years from the commencement or interposition of such action or defense.

The trial court found that the respondent was in possession of the property and was entitled to a judgment quieting title in her. It did not find that the plaintiff had not been in possession during the four years prior to suit. In fact, the evidence would not support such a finding.

We, therefore, conclude that the city is not barred by the statute of limitation from asserting its claim to the land.

The respondent further claims that her tax title is good and that the city lost its interest in the land by failing to pay the taxes for the year 1959.

We think that the case of Utah Parks Company v. Iron County et al.,³ is controlling in this matter. In that case, realty owned by Utah Parks Company on January 1, 1958, was sold to Cedar City on January 31, 1958. Cedar City, like the plaintiff herein, was a tax exempt municipal corporation. In that case this court held that since the real property in question was transferred to a tax-exempt entity prior to assessment and levy, there was no tax due on it even though it was owned by a taxable entity on January 1, 1958.

While that case involved taxes and the instant case has to do with title, we think the Iron County case is directly in point. It held that the tax was invalid. The defendant’s claim of title has to be based upon the validity of her tax title. If the tax on the land for which the sale was made is invalid, then the sale is void, and the defendant got no title by her tax deed.

The old case of Gillmor v. Dale⁴ also held that when land was disconnected from a municipality after the lien date but before levy and assessment by the municipality, there would be no tax lien upon it.

Before the holder of a tax deed can deprive the record owner of land, the burden is upon him to establish his title by showing that the tax and all proceedings in connection therewith were strictly according to the statute.⁵

In this matter the respondent has not shown that the assessment and levy of the tax for the year 1959 were made prior to the time when the city acquired its title. It thus appears that the plaintiff in this case owns the land which has served for many years as its “city dump” and that the defendant has no valid claim or interest therein. ⁶

The judgment is reversed and the case remanded with directions to quiet title to the city dump in the appellant. No costs are awarded.

CROCKETT and TUCKETT, JJ., concur.

1 . Article XIII, Sec. 2, Constitution of Utah.

2 . Section 59-10-3. U.C.A.1953.

3 . 14 Utah 2d 178, 380 P.2d 924 (1963).

4 . 27 Utah 372, 75 P. 932 (1904).

5 . Fivas v. Petersen, 5 Utah 2d 280, 300 P.2d 635 (1956).

6 .The dissent queries “What become of the lien.” The answer is “It died aborning.”