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Belfer v. Lewis

Supreme Court of Arizona

March 29, 1955

Julius S. BELFER and Elizabeth Belfer, husband and wife, Appellants,
v.
P. M. LEWIS and City of Tucson, a municipal corporation, Appellees.

[79 Ariz. 14] Darrel G. Brown, Tucson, for appellants.

Harry L. Buchanan, City Atty., F. Dale Healy, Jr., Asst. City Atty., William J.

Page 795

Riegger, Asst. City Atty., Tucson, for appellee, City of Tucson.

PHELPS, Justice.

Appellants, plaintiffs below, filed an action against several defendants, among them appellee City of Tucson, seeking to quiet appellants' title to certain lots in the City of Tucson. Appellees moved for summary judgment and it was granted. From said judgment the appellants appeal.

The material facts are these: The property involved herein consists of two lots in Monterey Addition, an addition to the City of Tucson, Arizona. The original owners of these two lots were Edward J. and Marion Olech, husband and wife, against whom appellants obtained a default judgment. They have not appealed.

In accordance with chapter 16, article 23, A.C.A.1939, amended, the City of Tucson caused to be made certain improvements in the Monterey Addition to the City of Tucson. The first improvement was a sewer assessment levied upon the properties in question on November 5, 1951.

The sewer assessment became delinquent and the properties were sold July 9, 1952, to appellants who paid the entire assessment and obtained a certificate of sale. Appellants thereafter obtained a deed from the City of Tucson superintendent of streets, July 9, 1953.

The second assessment was for paving and was levied July 18, 1952, which was after appellants received their certificate of sale but was prior to appellants' deed.

The paving assessment interest became delinquent January 8, 1953, and P. M. Lewis paid same and received a certificate of sale.

P. M. Lewis failed to make payment of the second installment of interest due in July 1953 and the properties were sold to the City of Tucson July 20, 1953, which received another certificate of sale. As above stated, appellants seek to quiet title to said property in themselves.

The principal question for determination on this appeal is whether one who obtains a certificate of sale, because of delinquent special assessments, that later [79 Ariz. 15] materializes into a deed acquires title free of improvement liens or assessments thereafter levied. In other words whether the senior special assessment certificate abolishes ab initio the junior special assessment certificate.

These improvements were authorized by statute, 16-2301, A.C.A.1939, and this statute contemplates more than one improvement. After the improvements are made and the property owner is delinquent, the property is then put up for public sale. If there are no purchasers for the property, then it must be struck off to the city under the provisions of section 16-2331, A.C.A.1939.

Under our fact situation here is a case where two improvement assessments were made according to statutory provisions. After appellants had obtained a certificate of sale on a prior sewer assessment lien, as above stated a second assessment was made upon the same property for the pavement of streets. After the interest on the second assessment became delinquent the property was struck off to the appellee City of Tucson. Statute § 16-2331, supra, also provides for the municipality to sell any lots so purchased after the expiration of the time for redemption.

It is contended by appellants that where there are two special assessments under the Public Improvement By Special Assessment Act, the prior assessment is superior. They reach this conclusion from the following portion of section 16-2326, A.C.A.1939, which reads as follows:

'* * * It is hereby certified and declared * * * that the special assessments out of which said bonds are to be paid are first liens on the property assessed, subject only to the lien for general taxes and prior special assessments, * * *.'

Section 16-2326, supra, provides the substantial form of the bonds to be issued under the Act and the portion thereof above quoted is a part of the bond itself. It has no application whatever to the issues here involved. It has to do ...


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