Hurd v. Brisner

The opinion of the court was delivered by Dunbak, J. The judgment in this action was based on the following facts found by the court: (1) That the original assessment roll for the year 1875 is not in the office of the county auditor of King county, and there is no testimony offered to explain the absence of said original assessment roll. (2) That there is no record or evidence showing that the sheriff demanded payment of thepersons ch argeable in the transcript certified to him by the county auditor. At common law the burden of proof as between the owner and purchaser is upon the tax purchaser to show that all the provisions of the law in relation to the proceedings on which his claim is based have been strictly complied with. He must give some evidence, the best he can, of every fact the existence of which is necessary to establish his right. The recitals in the deed are no evidence at all of the truth of what is recited. It is the duty of the purchaser to secure and preserve the evidence of his rights, and he cannot complain of losing them if he neglect so clear a precaution. Blackwell on Tax Titles, § 1120. To what extent the presumptions of the common law have been changed by our statutes, is the main question here. Sec. 40 of the Laws of 1871, p. 48, which was in force at the date of this sale, provides that a tax deed shall be presumptive evidence of the regularity of all former proceedings. Thus it will be seen that the burden of showing the irregularities are shifted to the owner. In this case the court ■finds, and the finding seems to be warranted by the testimony, that the original assessment roll on which this identical tax was based was not in the office of the county auditor of the county in which the land taxed is situated. The validity of the tax depends upon the assessment, and [5] the assessment can only he shown by the assessment roll; it is upon this roll that the county commissioners based their calculations in levying the tax. Laws 1869, p. 184, §§ 25 and 26. The auditor is the proper custodian of the assessment roll, and when it appears that the original assessment roll is not in the auditor’s office, in our judgment the presumption of the regularity is overthrown and the burden devolves upon the purchaser to explain its absence. In speaking of this kind of a case under a statute similar to ours, Mr. Black, in his work on Tax Titles, § 254, says: “If he shall succeed in making out a, prima facie case against the tax title, he will have shifted the burden of proof in respect to the points so singled out for attack, back to the purchaser. . . . ‘ The evidence of irregularity must he such as to require explanation or counter proof, and must be of matters which are peremptory and not directory, and that it is not sufficient to cast a general doubt over the title, but that it is necessary to point out some specific defect or raise a reasonable presumption against the sufficiency of some particular act, or of the non-performance of some necessary duty.’ ” It is not disputed that the making of the assessment roll is a peremptory duty under the law. It is the initial step, the foundation of the whole system of taxation under our statutes. See chap. 3, Laws 1871, p. 40, on the manner of making assessments. If this roll is not found in the office of the person charged with its custody, it is sufficient evidence of irregularity to require an explanation. If it has ever been there and is gone, there must be some explanation that can be given for its absence. In the absence of such explanation the presumption must be that it was never there. On any other theory it would be impossible to make any defense against an irregularity of this kind. In support of this view we cite Lacey v. Davis, 4 Mich. [6] 140, 66 Am. Dec. 524; Case v. Dean, 16 Mich. 12; Auditor v. Jackson Co., 65 Ala. 142, and many other cases. In fact we are unable to find an authority holding to the contrary, where the irregularity shown was a fundamental requisition and not merely some directory proceeding; excepting possibly Sams v. King, 18 Fla. 557, where it is held that it is not sufficient to prove facts from which irregularities may be inferred. In addition to this, it is said (Black on Tax Titles, § 254) that notwithstanding the fact that there may be a statute making a tax deed presumptive evidence of the regularity of the proceeding, if the holder of such a deed goes into proof of the steps necessary to make the same valid, he will be deemed to have waived the benefit of the presumption in favor of the deed. Many propositions are urged and authorities cited in their support by appellant which are readily conceded by the court, and which do not affect in our judgment the true issues involved in this case. Secs. 2936-37 of the code are not in point, as they were not in force at the time of the sale, even conceding the constitutionality of the latter section. If the sale was void, which we think it was, none of the claims made by the appellant under the statute of limitations are good. Without analyzing the deed in question or entering into any discussion, as so many courts are inclined to do, on the policy of the laws regulating tax titles and the difficulties of obtaining such titles, but construing the law in harmony with the great weight of authority, we find no error of the court below. Judgment is affirmed. Hoyt, Stubs and Scott, JJ., concur. Anders, O. J., concurs in the result.