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Consolidated Motors, Inc. v. Skousen

Supreme Court of Arizona

January 13, 1941

CONSOLIDATED MOTORS, INC., a Corporation, Appellant,
v.
D. P. SKOUSEN; FERNE SKOUSEN, His Wife; HELEN STREITZ; HATTIE MOSHER; HATTIE MOSHER, Surviving Trustee Under the Last Will and Testament of JULIA A. LOUNT, Deceased; H. B. HUGHES; COIT I. HUGHES; COUNTY OF MARICOPA, a Municipal Corporation; CITY OF PHOENIX, a Municipal Corporation, Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and case remanded with instructions.

Messrs. Snell & Strouss and Mr. Mark Wilmer, for Appellant.

Mr. E. R. Thurman, for Appellees D. P. Skousen, Ferne Skousen and Helen Streitz.

Mr. E. E. Selden, for Appellees Hattie Mosher, Hattie Mosher, surviving trustee, H. B. Hughes and Coit I. Hughes.

OPINION

Page 42

[56 Ariz. 483] LOCKWOOD, C.J.

This is an action by Consolidated Motors Company, Inc., a corporation hereinafter called plaintiff, against D. P. Skousen and various other parties, hereinafter called defendants, to quiet [56 Ariz. 484] title to what is described in the complaint as lot 7 and the north one-half of lot 8, block 1 of Churchill's Addition to the City of Phoenix, Maricopa County, Arizona, the property also being described by metes and bounds. The principal defendants are D. P. Skousen and his wife, who claim to be the owners of the premises by reason of a certain foreclosure of mortgage and a tender of redemption of the property from taxes. Plaintiff relies for its title on two tax deeds, and the real question for our consideration is whether, in view of all the facts, the latter are valid. The trial court rendered judgment that plaintiff take nothing by its complaint and that the action be dismissed and defendants recover their costs.

The undisputed facts are as follows: The taxes on what was described in the records of the county assessor of Maricopa county as lots 7 and 8, block 1, Churchill's Addition to the City of Phoenix and which were assessed to one James Dean Collins, were, in September, 1931, delinquent for the last half of 1927, the last half of 1928, and the entire years of 1929 and 1930. The county attempted to sell them for these delinquencies, under the provisions of chapter 103 of the Session Laws of 1931, and certificates of sale therefor were issued to the state of Arizona on July 11, 1932. The certificate covering lot 8 was assigned to W. R. Wayland and Fred G. Holmes on July 30, 1938. The south half of this lot was redeemed by the record owner thereof, James Dean Collins, on July 30, 1938. At some time prior to December 23, 1938, Wayland and Holmes applied for a treasurer's deed to the north one-half of lot 8, which was issued to them on May 16, 1939. They then conveyed this north one-half to plaintiff. The certificate of purchase to lot 7 was assigned by the state to Dell E. Webb on May 19, 1939, and prior to June 2 of that year he applied for a treasurer's [56 Ariz. 485] deed. On June 21, defendant Skousen tendered to the county treasurer the amount of taxes then due on lot 7, without any penalties or interest added thereto, which tender was refused by the treasurer. No further tender being made, a treasurer's deed was issued to Webb on July 5, and on September 12 he conveyed lot 7 to plaintiff.

Page 43

There are four principal questions affecting the validity of plaintiff's title, and they may be stated as follows: (a) Was the tax sale of July 11, 1932, to the state of Arizona made in accordance with law? (b) Was the description of the property in the various instruments affecting the tax title sufficient? (c) Was the tender made by Skousen for the redemption of the north one-half of lot 8 a valid one? and (d) Did the treasurer have the right to issue a deed to Wayland and Holmes for one-half of lot 8 when the tax sale embraced the entire lot? We will consider these questions in their order.

We consider first the validity of the tax sale. It was made under the provisions of chapter 103, supra, and it is contended by defendants that the proof offered by plaintiff in the present action failed to show affirmatively certain jurisdictional prerequisites of a valid tax sale, in particular that it was not shown the following provision of section 18 of the chapter was complied with:

"... The said treasurer shall send, by letter mail, to the owner of each parcel of said property, if the owner be known, at his last known address, a copy of said notice of proposed sale...."

The testimony on this point, in substance, was that it was the custom of the treasurer's office to make an original and carbon copy of the notice of sale required by section 18, supra, and mail the original to the reputed owner of the premises at his last-known address, [56 Ariz. 486] retaining the copy in the files of the office; that there was in such files a carbon copy of the notice of sale marked "James Dean Collins, care Hattie L. Mosher, 415 North First Street" and that the original of said notice was gone, but there was no specific affirmative testimony of anyone that such original had been mailed.

It is the general rule in matters of this kind, where it is the custom of a business office to follow a regular routine, that where it is affirmatively established that part of a routine was followed it is presumed, in the absence of some evidence to the contrary, that the rest was also followed. Backdahl v. Grand Lodge,46 Minn. 61, 48 N.W. 454; Smith v. F. W. Heitman Co.,44 Tex. Civ. App. 358, 98 S.W. 1074. We think this is particularly applicable to matters such as the mailing of routine letters in an office where a very large number of such letters are customarily mailed in the due course of its business, and that proof of the custom and the fact that a carbon copy was found without the original in the place and under the circumstances where it would have been found, if the original had been mailed, is sufficient, in the absence of evidence to the contrary, to support a finding that the original had been properly mailed. But even if the facts above stated are not sufficient evidence to establish the mailing of the letter, we think there is another principle ...


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