I agree (1) that where mining property is involved, all the mining property, to wit: mining claims, mineral deposits, workings, machinery used in connection therewith, and all buildings and surface improvements upon or 1 appurtenant to the mines or mining claims whether on or off the claim, and all mills, smelters, refineries or reduction works used exclusively for the purpose of reducing or smelting ores from a mine or mining claim by the owner thereof, shall be assessed as real estate and as a whole, all parts being considered as a unit for purposes of assessment, levy, and sale.
I agree (2) that where the surface and underlying mineral of a claim or land are owned by the same person as shown by the records, they may be advertised and sold as one, even though assessed separately. The reason for this is that where the surface property has adaptability for other than 2 mining purposes and is actually used for such other purpose, it has an additional assessable value which should be shown in the same manner as improvements *Page 525 are required to be shown in the assessment. Barnard Realty Co. v. Butte, 50 Mont. 159, 145 P. 946.
Although this court seemingly held differently in Utah CopperCompany v. Chandler, 45 Utah 85, 142 P. 1119, followed inUtah Copper Company v. Eckman, 47 Utah 165, 152 P. 178, to the effect that surface rights used for other than mining purposes constitute a separate estate, I incline to the view that they are not such until severed by the owner by some unequivocal act such as transfer of them to different persons, or transferring one and retaining the other. Otherwise, difficulties in regard to title by adverse possession present themselves. The requirement of separate assessment when both surface and mineral rights are in the same person is no more than that the improvements shall be separately assessed. The requirement is for the benefit of the taxpayer so that he may know what value is placed on the component parts of his property in case he desires to appeal to the board of appeals (Board of Equalization).
I agree (3) that a tax sale is not void merely because the certificate of sale is defective, hence failure to show the year on the certificate or inclusion of mere surplusage will not invalidate a sale which may be otherwise proven. 3Bruno v. Madison, 38 Utah 485, 113 P. 1030, Ann. Cas. 1913 B, p. 584. But the effect of such omission or surplusage, as far as making the certificate evidence, is quite another matter.
Sec. 6021, C.L. Utah 1917, as amended by Chap. 139 Laws of Utah 1921, provides, as far as material here:
"The certificate of sale herein provided for, when signed by the county treasurer and delivered to the purchaser, shall be prima facie evidence of the regularity of all proceedingsconnected with the assessment notice, equalization, levies,advertisment, and sale of the property therein described, and theburden of showing any irregularity in any of the proceedings,resulting in the sale of property for the non-payment ofdelinquent taxes, shall be on him who asserts it. * * *" (Italics added.) *Page 526
(Note: In 80-10-35, R.S.U. 1933, a comma appears between the words "assessment" and "notice." Query: Under Sec. 6021, C.L. 1917, was the certificate prima facie evidence of a regular assessment?)
Assuming, for the instant, that the certificate is prima facie evidence that the steps mentioned above in Sec. 6021, C.L. Utah 1917 have been taken rather than evidence only of their regularity, can it be said to be prima facie evidence of a step when the certificate itself recited contrary-wise or is silent or ambiguous regarding that step? Can it be said, for instance, that it is prima facie evidence of a sale for the taxes of a certain year when the year is not mentioned? If so, it would seem that one would have to do nothing more than to introduce a certificate of sale in which the property was described, even though inadequately, and all the steps mentioned above would be proved regardless of the recitals. And if a skeleton certificate may serve that purpose how scanty a skeleton may it be? If oral evidence to supply the year omitted could be given to aid the certificate of sale as evidence, why not oral evidence of a misdescription or oral evidence to supplement an inadequate or ambiguous description in order to make the certificate prima facie evidence that all the steps had been taken? Regarding the failure to recite the year for which the tax was levied, the Supreme Court of Idaho in White Pine Mfg. Co. v. Morey,19 Idaho 49, 112 P. 674, 675, said:
"The tax certificate recited that the tax for which the sale was made was levied and assessed for the year 1903, while the deed fails to show the year for which this tax had been levied and assessed. While this fact would not impair the sale or the validity of the certificate, it would impair the deed and render it inadmissible as evidence of compliance with the law."
I am inclined to the view that the certificate of sale must properly describe the property and the taxes (by naming the year for which levied) for the non-payment of which the sale took place, before it can be used as evidence. Brink *Page 527 v. Dann, 33 S.D. 81, 144 N.W. 734. By the opinion of Mr. Justice Larson the certificate could not be evidence of a wrongful assessment which a recital therein would imply, such as the assessment for city taxes when the property was not in a city, but would be prima facie evidence of matters necessary to achieve the sale but not recited therein. Could any certificate purportedly pertaining to the land sold, be evidence of the fact that the proper steps leading to the sale had been taken as well as evidence of their regularity but not be prima facie evidence of an irregularity or invalidity which the recitals tend to show? It seems rather startling that the legislature should say: "You may introduce a certificate to show prima facie that all steps proper to sale have been taken but you cannot take the recitals in the certificate itself which show improper or invalid matters as prima facie proof that such have occurred."
It does not clearly appear in the case of Burton v.Hoover, 93 Utah 498, 74 P.2d 652, in which the certificates were held to contain insufficient descriptions, whether the holding was merely that such certificates were insufficient to show a valid assessment and sale, in the absence of other evidence, or whether the case decided that an insufficient certificate of sale would itself invalidate the county's title. If the latter was intended, the case was incorrectly decided.
As far as using the certificate as prima facie evidence that the steps leading to it were properly taken, the description should be adequate and not ambiguous. Therefore, the certificate in this case may have been improperly admitted as proof of the fact that those steps had been been taken, but as the opinion suggests, plaintiff may have cured the error by himself introducing evidence of the assessment, levy, notice of advertisement of delinquencies, etc. In the case of Wall v.Kaighn, 45 Utah 244, 144 P. 1100, while the criticisms are chiefly directed to the contents of the deed, the certificate of sale is also considered and found to be subject to the same criticism. *Page 528
Sec. 80-10-38, R.S.U. 1933, relating to assessments void in part, was taken from California Political Code, Sec. 3811, which was repealed in 1895, and was never construed by the courts in that state. There might be some question whether this section would apply to a sale for city and city school taxes which presumably had never been assessed upon the land, and whether a certificate so reciting would not show an unauthorized sale. For an instance where property was sold for a tax which hadnever been levied, see Fish v. Genett, 56 S.W. 813, 22 Ky. Law Rep. 177.
I agree also (4) that if the steps leading to the sale and the sale itself were properly taken the fact that an improper auditor's deed was given would not aid plaintiff if his time to redeem had run out. There might still remain the question, however, of whether the period of redemption 4 would expire until a deed sufficient to convey title had been executed — a question with which I need not now be concerned. Therefore, it is unnecessary to determine whether the auditor's deed was valid or void, since in any case if the proceedings to, and including sale for, delinquency were substantially followed plaintiff would possess only a right of redemption thereafter. The title could not be quieted in him. But query, under Fisher v. Davis, 77 Utah 81, 291 P. 493, would he not have the better title?
But what has been said in the opinion about the plaintiff's failure to offer to redeem is irrelevant and gives the impression that something was waived because of failure to assert a right. A tax sale, void because of excessive charges or for other reasons, would not become valid because the owner had not offered to redeem. And if the sale was valid no penalty attaches for failure to offer to redeem. What happens is that if the period of redemption runs out all rights are cut off. It is inaccurate to give the impression that if plaintiff had "sought to exercise" the right of redemption, he could then "complain" if the sale *Page 529 was invalid. If the sale is invalid he need not move to correct it on peril of losing his right. If valid, the right of redemption is lost automatically on expiration of the period. In the case of Intermill v. Nash, 94 Utah 271, 75 P.2d 157, it was intimated (page 284 of Utah Reports, page 163 of 75 P.2d) that a person against whom a void summons had issued had some duty to move in the matter in order to prevent a valid judgment against him. In certain cases laches may operate in equity to prevent one from standing by while he knows another is acting on the assumption that he is no longer interested, (see concurring opinion Intermill v. Nash) but there is no duty to move to reform or supply the "deficiency" in the provisions which the law requires to be performed properly before he can be deprived of his property or have visited upon him an ensuing duty to move to protect himself. Desert Irrigation v. Bishop, 92 Utah 220,67 P.2d 210, is authority for the proposition that if the original sale be valid the failure to hold a valid May sale will not invalidate the original sale nor permit the owner to quiet title. But see Fisher v. Davis, supra. A former owner may still retain his right to redeem but he has no right to ask the law to decree title in him when the sale for delinquency is valid. An owner is not required to redeem from an illegal sale. 4 Cooley on Taxation, 4th Ed., Sec. 1562, p. 3070-71, citing Fish v.Genett, 56 S.W. 813, 22 Ky. Law. Rep. 177; Simpson v.Meyers, 197 Pa. 522, 47 A. 868.
But this is not a suit to redeem. As was said by the New Jersey Court in Welles v. Schaffer, 98 N.J. Eq. 31, 33,129 A. 622, 623:
"A bill to redeem proceeds upon the assumption that the purchaser has a valid, inchoate, but defeasible, title by virtue of the certificate, and the only issue which the court can entertain and decide is whether the right to redeem is still open to the complainants."
This is a suit to quiet title and proceeds upon the theory that the original sale is void. The opinion states in regard *Page 530 to the efficacy of the recitals in the tax deed to furnish proof of their having been performed:
"So no further proof is required of such person, as to any matters recited in the auditor's deed, than the deed itself. While such matters are established prima facie by the evidence indicated, it is not the only evidence and may be rebutted. So, although the deed contained a recital that the lands were assessed for city and city school taxes, such recital was rebutted by the evidence adduced by plaintiff himself when he put in evidence as part of his case in chief Exhibits D, G. and F, being the assessment, apportionment by State Tax Commission, the County Assessment Roll, and the County Tax computation on this property, respectively showing it was not assessed as within any city or town, and that no city or city school or town tax was figured or computed or levied against it."
Sec. 80-10-66, R.S.U. 1933, reads as follows:
"* * * shall recite substantially the amount of the tax for which the property was sold, the year for which it was assessed, the day and year of sale, the amount for which the real estate was sold, a full description of the property, and the name of the county or assignee; and when duly executed and delivered by the county auditor shall be prima facie evidence of the facts recited therein."
This section provides what shall be substantially recited in the tax deed and makes those required recitals prima facie evidence of the facts thus required to be recited. It is not required that the tax deed recite the different taxes levied against the property but only the amount of tax for which the property was sold. Hence, a recitation not only of the amount of the tax for which the property was sold but the sort of taxes levied which constituted the aggregate tax was not necessary. InPrice v. Barnhill, 79 Kan. 93, 95, 98 P. 774, the court said:
"A statement in a tax deed of a fact showing that it was improperly issued is fatal to its validity, although occurring in the course of a recital not required by statute."
In Ball v. Busch, 64 Mich. 336, 31 N.W. 565, 570, it was said: *Page 531
"The legislature did not intend to say that a paper shall be held prima facie valid, when it carries upon its face the evidence that shows it is void."
Other excerpts are given in Wall v. Kaighn, supra. But these come from cases of an earlier period when the rule of stricti juris was more rigidly applied. In this case the tax deed recited as a fact something which was not in fact true. The plaintiff sought to use the tax deed, not to prove the facts of which the statute makes the deed prima facie proof, but to show its invalidity. As above stated, such invalidity would not have availed him even if proved. It might serve only to show that he still had the right to reclaim the property. The plaintiff did not seek to use the tax deed to prove that city and city school taxes had been levied but to show that the tax deed was invalid because it recited some fact which was untrue. Hence, all that is said in the opinion regarding the right to rebut a recital in the deed seems to me to be irrelevant. The plaintiff does not claim such fact to be true. He claims it is an untrue recital which voids the tax deed. It is not in the case as a fact to be rebutted but as the statement of something which is not a fact and which, therefore, voids the tax deed. The statement in the main opinion that such matters (untrue, unrequired matters in the deed) are prima facie evidence of their existence is legally incorrect. The tax deed is only prima facie evidence of the facts required to be recited and recited therein.
I now turn to the question: What is the effect of the failure of the auditor to attach to the roll the affidavits required by law?
In California the court has held these affidavits absolutely essential to the right of the collector to enforce collection of taxes in the following cases: Miller v. Kern County, 137 Cal. 516,70 P. 549; Henderson v. Ward, 21 Cal. App. 520,132 P. 470; Moyer v. Wilson, 166 Cal. 261, 135 P. 1125; Brady v.Davis, 168 Cal. 259, 142 P. 45; Leonard v. Jaffray,175 Cal. 371, 165 P. 956; Butterfield v. *Page 532 Union Hollywood Water Co., 39 Cal. App. 605, 179 P. 524. The same result was reached in Brewer v. Kulien, 42 Wyo. 314,294 P. 777; Sidlo, Simons, Day Co. v. Phillips, 48 Wyo. 390,49 P.2d 243; United States v. Klink, D.C., 3 F. Supp. 208;Friedner v. Galveston, Tex. Civ. App. 229 S.W. 950; Taber v. State, 38 Tex. Civ. App. 235, 85 S.W. 835; Clayton v.Rehm, 67 Tex. 52, 2 S.W. 45; Richardson v. Howard, 23 S.D. 86,120 N.W. 768; Warfield-Pratt-Howell Co. v. Averill GroceryCompany, 119 Iowa 75, 93 N.W. 80; Woodbine Savings Bank v.Tyler, 181 Iowa 1389, 162 N.W. 590; People v. Pulver,226 A.D. 416, 235 N.Y.S. 655; People v. Golding, 55 Misc. 425,106 N.Y.S. 821; People v. Suffern, 68 N.Y. 321; Brase v. Miller, 195 N.Y. 204, 88 N.E. 369; Flint v. Sawyer,30 Me. 226; Howard v. Heck, 88 Mo. 456; Burke v. Brown,148 Mo. 309, 49 S.W. 1023; Maxwell v. Paine, 53 Mich. 30,18 N.W. 546; Westbrook v. Miller, 64 Mich. 129, 30 N.W. 916;Newkirk v. Fisher, 72 Mich. 113, 40 N.W. 189; Hall v.Kellogg, 16 Mich. 135; Kelly v. Craig, 27 N.C. 129; State v. Lehman, 100 Fla. 1401, 131 So. 333; Marsh v. Supervisorsof Clarke County, 42 Wis. 502; Power v. Kindschi,58 Wis. 539, 17 N.W. 689, 46 Am. Rep. 652; McGhee v. Sampselle,47 W. Va. 352, 34 S.E. 815; Ream v. Stone, 102 Ill. 359;Lamb v. Farrell, C.C., 21 F. 5. And our own case of Asper v. Moon,24 Utah 241, 67 P. 409. On the other side are the cases cited in the opinion of Mr. Justice Larson including the Idaho cases, especially, Armstrong v. Jarron, 21 Idaho 747, 125 P. 170, which construed a statute similar to our Sec. 80-11-7 regarding informalities not invalidating acts relating to assessment or collection of taxes. The cases first above cited hold the omission of the affidavit to be more than an informality.
There are, of course, a number of states wherein it is provided that a tax sale may be avoided only for certain specific causes, as in North Dakota it is provided (Sec. 2193, Comp. Laws of North Dakota 1913) that a tax sale may be set aside only when it is proved; that the property *Page 533 was not subject to taxation, or that the taxes were paid prior to sale, that notice of sale was not given, as required by law, or that the property was not offered for sale to the party who would pay the amount for which the same was to be sold. In Mississippi a tax deed may be invalidated only by proof that the land was not liable to sale for the taxes, that the tax had been paid before sale, or that the sale had been made at the wrong time or place. Sec. 3273, Miss. Code, 1930.
Florida by an Act passed in 1929 provides that property owners are charged with the duty of ascertaining the amount of tax and paying the same before date of delinquency; all provisions of law relating to assessment and collection of taxes are declared to be directory only, for orderly procedure of the officers and not primarily for the protection of the taxpayer; no sale or conveyance is void except on proof that the property was (1) not subject to taxation, (2) that the tax had been paid before sale, or (3) that the property had been redeemed prior to execution of conveyance. Laws of Florida 1929, c. 14572, p. 1100.
Under such statutes the rule would be different from the rule under our statute. Earlier tax decisions stressed the necessity for strict compliance with provisions of the tax statutes on the theory, as stated in Tintic Undine Mining Co. v. Ercanbrack,93 Utah 561, 567, 74 P.2d 1184, that a person could not be deprived of his property except by strict compliance to all the "proceedings which culminate in the sale." The theory was that the taxing officials did not act by warrant of law unless they strictly complied with every provision of the law. Tintic UndineMining Co. v. Ercanbrack, supra, 93 Utah, p. 568,74 P.2d 1184, 1187. In the Ercanbrack case we were not content to hold that the rule of stricti juris applied. We used the superlative form strictissimi juris. (93 Utah p. 567, 74 P.2d 1184). But some jurisdictions have relented somewhat, possibly because collection of taxes became difficult, because taxpayers could rest supine relying on the inevitable tendency for *Page 534 human error to protect them, and because diligent lawyers searching the records could always find some flaw. In consequence, tax revenues suffered. Thus the view was adopted that mere irregularities would not void a sale or prevent a purchaser from obtaining good title. Defects must be substantial. Contradictory decisions during this period can be explained in many cases by rulings of the court that certain deficiencies merely constituted irregularities distinguished from substantial defects. Then crept in the concept that the test should largely be one of whether the step was one upon which the taxpayer could or did rely (Armstrong v. Jarron, supra) whether he was prejudiced thereby, or whether, as was said in Richardson v.Howard, supra, it was for the taxpayers' protection. Naturally a swing from the rule that the tax officials acted without warrant of law when they departed substantially from any requirement enforced by the tax laws, to a concept that when the departure was one only from a provision merely directionary on the officials which could not affect the taxpayer or in any way prejudice him and therefore would not affect the sale or the title of the purchaser, replaced simplicity with complications. The later rule required the courts to specify what was or was not for the benefit or protection of the taxpayer or what would or would not tend to mislead or prejudice him or what provision was for office administration or merely directory and what was not. As shown above, legislation cleared up this difficulty in many of the states but not entirely in our own for the reason that we have no legislation such as has North Dakota, Mississippi, or Florida.
I think we should differentiate those matters which are designed to protect the taxpayer in the process of the taxation steps from those which do not touch or affect him in that they are designed to obtain uniform, convenient, and perfected office practice and administration and thus touch the taxpayer only remotely. We should include in the first type, steps such as assessment, notice, sale, etc., and require a strict performance in all matters of substance but *Page 535 allow for omissions or defects which are insubstantial, especially when the taxpayer could in no way reasonably be misled by them — in short, we should adopt a common sense view.
I would think with the great majority of the decisions that the authenticating certificate of the auditor is a matter of substance and for the protection of the taxpayer. It tends to insure care and accuracy and the taxpayer may rely upon it in assuming that all corrections in his favor have been made and that the assessment as it appears over the auditor's certificate is the one finally completed after action by the Board of Equalization. But Sec. 80-5-30 reads that
"A failure to make or subscribe such affidavit, or anyaffidavit, will not in any manner affect the validity of the assessment." (Italics added.)
This section may be read to mean that the failure of the assessor to offer the definitely required affidavit or in fact, any affidavit, shall not invalidate the assessment. It is contained in a chapter which is entitled "Further Duties of County Assessors" and appears, therefore, to pertain only to assessors and not to the auditor's certificate provided for in Sec. 80-8-7. It is difficult, however, to see why the Legislature should intend that the failure of the assessor's certificate should not invalidate the assessment but omission of the auditor's certificate should invalidate a sale. The first seems even the more important as an assurance to the taxpayer. I think Sec. 80-5-30 must be taken as an expression of legislative policy which carries over as to the auditor's certificate. And since this is in accordance with the growing tendency not to declare departures or omissions fatal to the validity of the tax when the taxpayer knows he owes it and has not actually been misled or jeopardized, I shall for the reasons herein expressed concur in regard to this point. *Page 536
I cannot subscribe to the statement that plaintiff cannot introduce the assessment book to show a departure from it by the auditor's deed in order to show that the deed is invalid, and at the same time, or subsequently, attack the assessment itself as invalid. I know of no principle in law which requires a party to elect between or among infirmities. For instance, Sec. 40-3-7, R.S.U. 1933, sets forth the interlocutory decree "shall specifically provide that it shall not become absolute until the expiration of six months from the date of its entry." Assuming this to be a mandate of the legislature, certainly a party could attack the decree on the ground that it did not contain such provision and also on a more fundamental ground that the court never had jurisdiction to make a decree. And in the case at bar I see no reason why the plaintiff cannot say "Even if the assessment is valid the auditor's deed does not comport with it and hence the latter is not valid for that reason, but even if the auditor's deed passes the test of validity in this regard the assessment itself for other reasons is totally invalid." The procedure is simple: The court first determines whether the assessment itself is valid. If not, that ends the matter. If valid, it passes on to determine whether the auditor's deed is invalid for the reason that its recitals do not conform as required by law. If the plaintiff reversed the procedure by first attacking the assessment as invalid and on being overruled then used the assessment, so held valid, in an attempt to show the auditor's deed invalid, we would not think the positions inconsistent. I do not think the order of assertion material. But as said before, proving the auditor's deed invalid would avail plaintiff only to the extent of showing that he still had a right to reclaim his property. Nor do I think it necessary at this time to hold that the auditor's affidavit is only to make the record prove itself. True, it is far narrower than the assessor's certificate which certifies to honest performance of duties in some particularization. The auditor's certificate largely partakes of the nature of an authentication of records *Page 537 since it pertains altogether to acts involving proper recording of the acts of the county board of equalization, the State Tax Commission, and his own acts in reference to the record. But at this time I would not want to say that it serves only the purpose of authentication rather than a broader and more substantive purpose. I do not think this case requires us now to decide that question.
I concur in the result but only in those parts of the opinion as indicated by my discussion above.
PRATT, J., dissents.