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Linville v. Cheney

Supreme Court of Arizona

May 3, 1943

W. H. LINVILLE, as Treasurer and ex-officio Tax Collector of the County of Maricopa, State of Arizona; and THE STATE OF ARIZONA, Appellants,
v.
M. B. CHENEY, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Judgment reversed and cause remanded with directions.

Mr. Joe Conway, Attorney General, Mr. Earl Anderson, Special Assistant Attorney General; Mr. Richard F. Harless, former County Attorney, Mr. Charles B. McAlister, his deputy; Mr. Harold R. Scoville, present County Attorney, and Miss Loretta C. Savage, his Deputy, for Appellants.

Messrs. Wilson & Wilson, for Appellee.

OPINION

Page 396

[60 Ariz. 327] ROSS, J.

On or about February 1, 1938, the county treasurer of Maricopa County sold or struck off to The State of Arizona, as provided by statute (section 73-806, Arizona Code 1939) Lot 3, Section 2, Township 2 North, Range 4 East, Gila & Salt River Base & Meridian, Maricopa County, Arizona, for delinquent taxes due and owing thereon for the years 1931, 1932, 1933, 1934 and 1935. This property had been assessed for those years, and previous years, to James O'Donnell as owner. The validity of the levy and assessment of the taxes is admitted, those for 1931-1935 as well as those for previous years.

The plaintiff M. B. Cheney is the assignee from the state of the county treasurer's certificate of purchase, having paid the state therefor the sums mentioned in section 73-817, to wit, taxes, delinquent charges, costs, etc.

The taxes on the property for 1921 in the sum of $51.44, for 1922 in the sum of $21.67, for 1923 in the sum of $42.69 and for 1931 in the sum of $29.42 are unpaid and delinquent.

The question is as to whether these last taxes are a lien on the property, notwithstanding the sale of property to plaintiff's assignor for delinquent taxes for the years 1931 to 1935 inclusive.

There can be no question as to plaintiff's right to have a deed of the property under the sale to and the assignment by the state to him. The real purpose [60 Ariz. 328] of the action is to secure a decision as to whether the delinquent taxes for 1921, etc., still remain a lien on the property, and that is the question we are to decide.

The trial court held under the facts stated above that the state has no lien for delinquent taxes on the property for years prior to February 1, 1938, and such holding was based in part upon section 73-820, reading as follows:

"Aggregate amount of all unpaid taxes included. -- The delinquent taxes for which real property shall be sold pursuant to the provisions of this act shall not be confined to the unpaid taxes for any certain year or years, but it shall be the duty of the county treasurer to advertise and sell any such real estate for the aggregate amount of all unpaid taxes becoming delinquent during each and every preceding year, including any year prior to the passage of this act, together with all penalties, interest and charges respectively due thereon under this or any prior law, whether or not said aggregate amount, or any part thereof, has, or shall have been, reduced to judgment; provided, that failure to include the unpaid taxes becoming delinquent during any year shall not invalidate a sale for unpaid taxes becoming delinquent during any other year or years, and provided further, that no sale for unpaid tax shall be commenced at a date later than five (5) years after delinquency, unless advertised, as herein provided, within said five (5) year period."

We are satisfied that the five-year limitation in the section, if constitutional, affects the remedy only and not the right. It does not liquidate or wipe out a tax lawfully imposed on property as is the case here. It only prohibits the sale of property for delinquent taxes, unless such property is advertised for sale (as herein provided) within five years of date of delinquency. At most, it affects the remedy for the collection of the taxes. This is definitely determined [60 Ariz. 329] in Maricopa County v. Bloomer, 52 Ariz. 28, 78 Pac (2d) 993, 994, wherein we said

"... It is unlawfully recogni z ed that statutes of limitations do not affect the validity of the obligation, but merely the remedy given by law for its enforcement. Masury & Son v. Bisbee Lbr. Co., [49 Ariz. 443] 68 P.2d 679; City of Bisbee v. Cochise County, [52 ...


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