Jacobs v. Buckalew

42 P. 619, 4 Ariz. 351, 1895 Ariz. LEXIS 11

• Court: Arizona Supreme Court
• Decided: December 4, 1895
• Docket: Civil No. 453
• Status: Published

Opinions

ROUSE, J.

This is an action in ejectment for block 184 in the city of Tucson, Pima County, Arizona. Buckalew was the owner of said block 184. Said block was a square, bounded by streets on all sides, and covered with buildings fronting on the several streets, so built as to make them in appearance one building. The buildings in fact were separate houses joined together, and occupied by different families as dwellings. The whole block was assessed as one piece, and valued for that purpose at five thousand dollars. Buckalew failing to pay the taxes on said block, it became delinquent, and was advertised and sold for the taxes due for the year 1891, and was also advertised and sold for the taxes due for the year 1892. Plaintiff purchased said block at both of said sales, and deeds were executed and delivered to him by the tax-collector, conveying to him said block, and these deeds are the evidences of title relied upon by plaintiff in this action. The assessment and judgment for the taxes due upon said property were regular. The only question presented by the record in this case for our consideration is as to the duty of a tax-collector in the sale of property for delinquent taxes.. Paragraph 2694 of the Revised Statutes of Arizona is as follows: “The owner or person in possession of any property offered for sale for taxes due thereon, may designate in writing to the county collector, prior to the sale, what portion of the property he wishes sold, if less than the whole, but if the owner or possessor does not, then the collector may designate it, and the person who will take the least quantity of the property, or in case an individual interest is assessed, then the smallest portion of the interest, and pay the- taxes and costs due, including one dollar for the duplicate certificate of sale to the purchaser, and the county recorder’s fees for filing same in his office, shall be declared the purchaser. But in case there is no purchaser in good faith for the same as provided in this section, the whole amount of the property assessed shall be struck off to the territory as the purchaser and the certificate delivered to the county treasurer and filed by him in his office. ...” The defendant, prior to the sale, did not designate what part of said property he wished sold for the taxes due thereon, in writing, c: in any manner whatsoever. In fact it does not appear from ¡lie record in this case that he was even present at said sale. The tax-collector simply read the advertisement of property which was delinquent, as shown by the advertisement, and maco the proclamation that he would sell the said property for the taxes due thereon; and in said advertisement the property in controversy was embraced. The tax-collector did rot designate any portion of the property in controversy thai he would sell, less than the whole, in any other manner than as follows: “Oscar Buckalew, block 184, and improvement:;:, in Tucson, territorial and county taxes, $181.50; city taxes:, $57.75; costs, $1.00. Who will take the lowest portion or quantity of said block 184 and improvements, and pay the taxes and costs due? ...” There being no offer or any response by any one to said question, said collector again exclaimed: “Who will take all of said block 184 and improvements, and pay said taxes and costs? . . .” Thereupon the plaintiff, Lionel M. Jacobs, said: “I will take all of said block 184 and improvements, and pay said taxes and costs.” And thereupon said collector announced that said Jacobs would rake said block, and pay the taxes and costs, and he then publicly inquired: “Will any person take a less quantity of s; id block, and pay the taxes and costs?” No response being made to this inquiry, said collector struck off and sold to said Jacobs the whole of said block 184, and delivered to him a certificate of sale as the purchaser thereof; and thereafter deeds for said block were executed and delivered to said Jacobs, and they are the deeds on which plaintiff’s right of recovery in this action is based. We are not advised by the record as to whether the said block 184 was subdivided into lots or not. It all belonged to defendant, and was covered by buildings so joined together as to have the appearance of one building. An assessment of it as a block was proper. Weaver v. Grant, 39 Iowa, 294; Kregelo v. Flint, 25 Kan. 695; Wyman v. Baer, 46 Mich. 418, 9 N. W. 455; People v. Culverwell, 44 Cal. 620; Rev. Stats. Ariz., par. 2642. Notwithstanding the description of the property in the assessment, and notwithstanding the fact that the owner of the property had made no designation of the part of the property he wished sold for the taxes, it was the tax-collector’s duty to designate and offer for sale the smallest portion thereof for the purpose of raising the amount due for the taxes thereon. French v. Edwards, 13 Wall. 506; Roth v. Gabbert, 123 Mo. 21, 27 S. W. 528. The provisions of paragraph 2694 of the Revised Statutes of Arizona as to the duties of the tax-collector are mandatory, and, said collector having failed to comply with the provisions thereof in the sale of said property, the deeds executed and delivered therefor to plaintiff were void, and the judgment of the district court is affirmed.

Hawkins, J„ concurs,