(dissenting).
For the reasons stated in my dissenting opinion in the case of Page v. McAfee1 I am unable to agree with the prevailing opinion herein. However, I wish to give other reasons why I cannot concur in this matter.
The prevailing opinion seems to me to “curry the calf” 2 too much.
The first case cited in the opinion is that of American Mutual Building & Loan Co. v. Jones, et al.3 That was a case wherein the county was made a party to the lawsuit. There, as in the instant matter, the county disclaimed any interest in the land in question. This Court in that case stated:
The order of the lower court making Utah County a party was not an error. The County had good tax title. Its subsequent failure to make a valid sale did not affect its title. Plaintiff [record owner] had no title. .
The County, by disclaiming any interest in the premises, does not transfer title to plaintiff any more than to Robert Jones [the purchaser at the invalid tax sale]....
******
In the present case, however, the County and not plaintiff was paramount owner of the property. . . . Until title is again acquired by that owner, either by redemption before a valid May sale or purchase after such a sale, the title cannot be used by the original owner as being in himself and thus a basis for constructive possession of the premises.
Section 59-10-56, U.C.A.1953, provides as follows:
Real estate taken over by the county for delinquent taxes may be redeemed by any person having an interest at any time while the property is held by the county under preliminary tax sale prior to the 1st day of April next following the lapse of four years from the date of preliminary sale . . . Property may not be redeemed after the expiration of the redemption period specified. [Emphasis added.]
Since the property involved in the instant matter was sold to the county on January 10, 1963, it could not be redeemed after April 1, 1967. Thereafter the county could dispose of its interest only at a valid May sale, and if there is no valid May sale, then title is in Salt Lake County and not the plaintiff herein, and plaintiff cannot prevail in this action.
*385In the second case cited in the prevailing opinion is that of Utah Lead Co. v. Piute County.4 There, a private sale was made before the final May sale, and this Court simply held that a county has no right to make a private sale until the public sale is had.
The third case cited is Mecham v. Mel-O-Tone Enterprises, Inc.5 There, the auditor purported to sell a parcel of land for unpaid general taxes when there were no such delinquent taxes against the land. This Court said:
We, therefore, hold that a purported sale of the plaintiffs’ land for non-existent delinquency in general taxes is void and conveyed no interest whatsoever to the purchasers. . . .
The last case cited in the prevailing opinion is that of Fivas v. Petersen.6 There, the county treasurer failed to notify the taxpayer of the assessed valuation of the property7 or of the amount of taxes assessed thereon.8
None of these cases has any bearing on the problem before us. The law of “stric-tissimi” as has been applied to tax sales in Utah in this case has been strictly observed. There is no claim of any failure of the county auditor or the county treasurer to perform his duties strictly as required by the statutes of this state or by the cases decided in this Court (except that of Page v. McAfee, supra). The only complaint made is that a deputy auditor, who had been such for eight years, had neither filed a bond nor subscribed to a written oath, nor had the auditor filed a written designation of the appointment with the county clerk. The deputy “cried the sale” under the orders of the duly elected county auditor, the money paid by the defendants was duly given to the county treasurer, and the deed which was given to the purchasers was signed by the auditor.
The case of Colorado Development Co. v. Creer 9 clearly shows that de facto officers can officiate in matters involving the assessing of taxes. There, the plaintiff obtained in the district court a writ of mandate to compel the officers of a. drainage district to levy an assessment. The officers among other defenses claimed that they were not subject to the writ because they were not de jure officers of the drainage district, since they had never taken an oath of office or filed a bond as required by law. While the writ was *386quashed on other grounds, this Court disposed of the claim of lack of qualification as follows:
It is by answer denied that the said supervisors have ever taken an oath of office or qualified as such supervisors. Conceding this to be true, still they show that they have acted in such capacity and performed many of the duties in connection with the office and have never resigned. They are de facto officers, and no other finding could be made upon that issue. .
The question as to whether the supervisors had qualified or not goes only to their official status as to their right, duty and power to perform the functions they have assumed to perform as de fac-to officers; until the right to that office is attacked by someone claiming a superior right, their official status in this case would not be changed. .
The holding of the instant case and of Page v. McAfee, supra, is, in my opinion, wrong and not based upon reason or common sense. What these cases do is to apply the “strictissimi” idea, which this Court has heretofore applied to tax sale procedures, to a general law regarding all deputy county officers.10 They in effect hold that there is no such thing as a de facto deputy auditor. If there can be no'such thing as a de facto deputy county auditor, then there can be no de facto deputy county attorney. Would anyone believe that this court would reverse a murder conviction simply because the acting deputy county attorney had not filed a written oath when he had prosecuted criminal cases under the direction of the duly elected and qualified county attorney for eight years? Or that this Court would permit the State to retry a defendant after an acquittal because the trial was a nullity? Such holdings would be consistent with the holding in this case.
I would overrule the case of Page v. McAfee, supra, reverse this case, and award costs to the appellants.
TUCKETT, J., concurs in the dissenting opinion of ELLETT, J.. 26 Utah 2d 208, 487 P.2d 861 (1971).
. A practice of the ancient Egyptian priests in order to make a newly-born calf resemble the old dead bull.
. 102 Utah 318, 117 P.2d 293 (1941).
. 92 Utah 1, 65 P.2d 1190 (1937).
. 23 Utah 2d 403, 464 P.2d 392 (1970).
. 5 Utah 2d 280, 300 P.2d 635 (1956).
. As required by Section 59-10-9, U.C.A. 1953.
. As required by Section 59-10-10, U.C.A. 1953.
. 96 Utah 1, 80 P.2d 914 (1938).
. Sec. 17-16-7, U.C.A.1953.