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Kincannon v. Irwin, County Treasurer

Supreme Court of Arizona

June 10, 1946

KINCANNON
v.
IRWIN, County Treasurer, etc

Appeal from Superior Court, Coconino County; Levi S. Udall, Judge.

Reversed with directions.

Wilson, Compton & Wilson, of Flagstaff, for appellant.

McQuatters & Stevenson and F. M. Gold, all of Flagstaff, for appellees.

LaPrade, Judge. Stanford, C. J., and Morgan, J., concur.

OPINION

[64 Ariz. 308] LaPrade, Judge.

The appellant, plaintiff below, brought action to set aside a Treasurer's Deed executed and delivered to the appellee, K. M. Quinn, which had its origin in a tax sale conducted by the County Treasurer for the non-payment of taxes. Article 8 of Chapter 73, A.C.A.1939, sets forth the procedure to be followed for the collection of delinquent taxes. Section 73-804, A.C.A.1939 of said Article 8, relates to the form of the notice of sale to be published by the County Treasurer. Among other things, it is provided that the County Treasurer shall publish a list of the properties on which there are delinquent taxes * * * to be published in two consecutive weekly issues of the official paper, the first of which publications shall not be less than two weeks nor more than three weeks prior to the date designated upon which the sale shall commence.

Section 73-806, Id., fixes the date on which any tax sale shall commence, and specifically relates to the date that shall be contained in the tax notice required to be published by Section 73-804, supra. The applicable portion of Sec. 73-806 reads as follows:

"The day designated in said list and notice shall not be earlier than the first day of October, nor later than the first day of November, and on said day the county treasurer shall commence the sale of all real property described in such list and notice on which the taxes and charges have not been paid, and shall continue the sale from day to day, Sundays and holidays

Page 862

excluded, until each parcel, or so much thereof as is necessary to pay the taxes and charges thereon, has been sold. * * *"

The County Treasurer, defendant Irwin's predecessor in office, caused his notice of tax sale to state that the sale would commence on the 30th day of September, 1938, contrary to the specific provision of Sec. 73-806, supra, which states that "the day designated in said list and notice shall not be earlier than the first day of October."

The tax notice was published twice, on September 9th and 16th, 1938. The sale was commenced on the 30th day of September and continued from day to day. On the 11th day of October, plaintiff's property was struck off to the state. Thereafter the certificate of purchase was assigned to the appellee, Quinn. After the expiration of five years from the sale, the [64 Ariz. 309] assignee made application for a treasurer's deed and received the same. See Sec. 73-835, Id. Belatedly, the appellee made attempt to redeem. His tender of taxes due was refused. He then brought this suit. There were several irregularities other than the one referred to, and upon which have been predicated assignments of error. Of these additional assignments of error, we will not take any cognizance, for the reason that our disposition of appellant's first assignment is conclusive of the vital issue in this case. This assignment is to the effect that the court erred in entering judgment declining to vacate the Treasurer's sale and permit plaintiff to redeem, for the reason that the sale was absolutely void in that the published list and notice of sale designated a day of sale not provided by law, and in contravention of Sec. 73-806, supra.

We are of the opinion that the original sale is void because the published notice of sale specified a day for the commencement of sale not provided by law. The day specified in the notice was September 30th, one day earlier than that authorized by law. It is the contention of the appellant that giving and ...


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