American Mut. Bldg. & Loan Co. v. Jones , 102 Utah 318 ( 1941 )

I concur, but in the interests of proper procedure I feel impelled to cogently state the controlling principles underlying the conclusions. The court found that all tax proceedings up to and including the issuance of the tax deed were regular and valid. That deed, as stated in the prevailing opinion, vested the fee title in the county and the plaintiff thereafter had only a right of redemption until a valid May sale. Unless and until that right of redemption was exercised plaintiff had no title to be quieted. The taxpayer's duty in such case therefore is to redeem from the sale, or to offer to redeem and make tender of the amount necessary for a redemption. When he has redeemed he has legal title which could support an action at law. If his offer and tender are not accepted, and conveyance to him of the legal title is refused, he may institute his action against the tax title claimant and the county, based upon such refusal, to compel a redemption.

When therefore the court finds or it is conceded by the parties that the title has been lost to plaintiff by valid tax proceedings concluding in an auditor's tax deed, the court should require plaintiff to redeem or make proper offer and tender for redemption, or judgment should be entered against him.

The county cannot cut off the taxpayers' right of redemption until a valid May sale. Robert Jones therefore obtained merely what the county had, a title subject to a right of redemption. That title was good against the whole world except the right of the taxpayer or his assignee to redeem. Plaintiff not having exercised or offered to exercise its redemption right, the only one it had in the property, defendants' title should have been quieted. Fisher v. Davis, 77 Utah 81, 291 P. 493.

But this court is limited in its orders to the issues presented to us by the assignments of error. Appellant does not raise the question of its right to maintain the action. Respondent has not cross-appealed nor made cross-assignments on the matter. We therefore cannot reverse the judgment although the court should have proceeded as indicated above.