Seaverns v. Costello

DAYIS, J. On the fourth day of June, 1901, Martin Costello commenced an action in the court below against the [310] Arizona Eastern and Montana Smelting, Ore Purchasing and Development Company, the Turquoise Mining Company, and George W. Seaverns, to quiet his title to the Mona, a patented mining claim, situate in the Tombstone 'Mining District. The defendant companies made no defense to the suit. The defendant George W. Seaverns filed an answer and cross-complaint. The answer generally and specifically denies each and every allegation of the complaint. In his cross-complaint the defendant “alleges that he is the owner, possessed, and entitled to the possession of the mining claim described in the plaintiff’s complaint; that the plaintiff is setting up and asserting title to said mining claim which is adverse to that of this defendant, and is a cloud upon the defendant’s title to said premises. Defendant alleges that for 10 years continuously last past, and hitherto, he and his grantors and predecessors in interest have been in the quiet, peaceable, uninterrupted, ''exclusive, notorious, adverse, and undisputed possession of said mining claim, possessing, owning, and claiming to own the same against the plaintiff and the whole world, and during all of that time have paid the territorial, county, and other taxes lawfully levied thereon; and in bar of plaintiff’s right, or pretended right, of action, this defendant now specially pleads the statutes of limitations of the territory of Arizona, as contained in the Civil Code thereof, title 44, c. 1, par. 2299, sec. 3, and the other laws of the said territory with reference thereto. Rev. Stats. 1887.” The defendant prayed that the plaintiff take nothing by his action, and that defendant have judgment for his costs and disbursements; that it be decreed that the plaintiff has no right, title, or interest in or to the said mining property, or any part thereof; that defendant’s title thereto be forever quieted; and for such other general and equitable relief as to the court may seem meet. Upon the trial, the plaintiff introduced in evidence the patent issued by the United States to Charles MeNamee for said Mona claim, dated December 28,1883, together with regular and sufficient mesne conveyances from . said patentee to himself, duly recorded, and thereupon rested his case. The defendant Seaverns then offered in evidence a deed from J. P. McAllister, tax-collector of Cochise County, dated November 25, 1891, purporting to convey to said defendant the mining premises in controversy, for the considera [311] tion of six dollars, in virtue of a sale theretofore made under a tax-judgment rendered in the district court of said county. This deed recited various acts done, anterior to its execution, in compliance with the statute, which at the time required a court proceeding and judgment as a basis for the sale of property for delinquent taxes. The tax-deed did not, however, contain a recital of the name of the person, firm, company, or corporation assessed, and from whom the taxes on said premises were due, nor any statement that the same was unknown. Because of the omissions referred to, and also upon other grounds, the plaintiff objected to the introduction of the tax-deed in evidence, and the court reserved its ruling upon the objection. The defendant Seaverns testified as a witness in his own behalf. That portion of his testimony which is material .was substantially as follows: “I am acquainted with the ground included within the confines of the Mona mine which is the subject of the litigation herein. I have been upon the premises, all over. it. I supposed that I owned it, having the tax-title deed from Cochise County. I took title, as I claim, under this deed from the tax-collector. I have paid the taxes on the property for, I think, 10 years.” To the question, on direct examination, “From the time that you bought this property from the tax-collector—from the time that the territory conveyed it to you, as described in this tax-deed—what have you done, with reference thereto, to the said mine, if anything?” the witness answered, “Nothing, but paid the taxes.” There was no other evidence offered on the part of the defendant. As tending to prove the invalidity of the tax sale, the plaintiff, in rebuttal, sought to introduce certain documentary evidence, consisting of the assessment-roll of Cochise County for the year 1889, the order levying the taxes for that year, and the tax-judgment upon which the sale was predicated. The record shows that this evidence was, received, subject to the objections thereto by the defendant, upon which the court reserved its ruling. The plaintiff tendered to the defendant on the trial the full amount which would be due to him, including penalties and costs, as the holder of a void tax-deed. A judgment and decree wás rendered in the plaintiff’s favor, quieting his title against the defendants, and each of them, and all persons claiming through or under said defendants, or any of them. [312] It was further decreed that the plaintiff should pay to the defendant Seaverns the sum of $39.89, being the amount due to him under the statute as the holder of a void tax-deed. From this judgment the said defendant appeals. The record shows that objections were interposed on the trial to the admissibility of certain documents offered in evidence, but it does not appear from the record what of said proffered evidence was considered by the court, or what excluded, in reaching its decision. Under these conditions, we must look into the case and determine whether the competent evidence sustains the judgment, for, if that be true, then we are justified in assuming that the lower court disregarded that which was incompetent. United States v. Marks, 5 Ariz. 404, 52 Pac. 773. The appellee, in proof of his title, showed a regular chain of transfer from the sovereignty of the soil to himself, by deeds duly registered. The appellant sought to prove title by his deed from the tax-collector. The statute in force at the time of the execution of this tax-deed, and applicable to instruments of this character, required that “the deed shall state the cause of the sale, the amount sold, the price for which the real estate was sold, the name of the person, firm, company or corporation assessed, and from whom the taxes were due, provided, the name is known, and if unknown, say ‘unknown,’ the same description of the land as is given in the order of sale and certificate of sale, and such other description as may be practicable for better identification.” Rev. Stats. 1887, par. 2701. Where the statute prescribes the particular form of a tax-deed, the form becomes substance, and must be strictly pursued, or the deed will be void. Blackwell on Tax Titles, p. 366. A special power granted by statute, affecting the rights of individuals, and which divests the title to real estate, ought to be strictly pursued, and it should so appear on the face of the proceedings. Atkins v. Kinnan, 20 Wend. 240, 32 Am. Dec. 534. Where the statute requires particular matters to be recited in a tax-deed, the failure of the deed to contain such recitals renders the same void. Grimm v. O’Connell, 54 Cal. 522; Hughes v. Cannedy, 92 Cal. 382, 28 Pac. 573; Simmons v. McCarthy, 118 Cal. 622, 50 Pac. 761; Wakeley v. Mohr, 18 Wis. 321. The tax-collector’s deed in the case before us contained no recital “of the name of the person, firm, company [313] or corporation assessed, and from whom the taxes were due,” nor any statement that the same was “unknown.” The deed was therefore void on its face because of want of compliance with the requirements of the statute. It was not even prima facie evidence that the title of the owner of the premises assessed was impaired, and could not form the basis for affirmative relief. Simmons v. McCarthy, supra. It cannot be contended that the tax-judgment, ordering the sale of the premises to satisfy the taxes, interest, penalties, and costs due thereon, would constitute any evidence of title in the appellant. The court below held that the appellant had not pleaded facts sufficient to entitle him to have advantage of the statute of limitations which he invoked, because his pleading did not show that he was “claiming under a deed or deeds duly registered.” The statute provides: “Every suit to be instituted to recover real property as against any person having peaceable and adverse possession thereof, cultivating, using, or enjoying the same, and paying taxes thereon, if any, and claiming under a deed or deeds duly registered, shall be instituted within five years next after the cause of action shall have accrued, and not afterwards.” Rev. Stats. 1887, par. 2299. There is also a provision that “the laws of limitation of this territory shall not be made available to any person in any suit, in any of the courts of this territory, unless it be specially set forth as a defense in his answer.” Id., par. 2328. The pleading of the statute of limitations, however, does not dispense with the necessity of also pleading all facts essential to bring the party within the provisions of the statute, when the existence of those facts is not shown by the pleading of the opposite party;. But this can have no important bearing upon the ease at bar, since the evidence in regard to the appellant’s occupancy of the disputed premises, which is wholly contained in the testimony of the appellant himself, is entirely too meager and indefinite to establish the “peaceable and adverse possession” without which the plea of limitations would be unavailing. ■ ¥e think the judgment of the court below is sustained by the evidence, and it will therefore be affirmed. Kent, G. J., and Sloan, J., concur.