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Show THE DAILY MONDAY. JANUARY 26, 1970 RECORD PAGE FOUR Ansvu rs tc hr&t. questions would then enable the triers of the fact to -- old determine whether 'he eleven-yeplaintiff with his experience, education, and infeii.'gei c e was eortributoiily negligent in causing the accident. A, tri.il there will be ether factual issues, but the above are sufficient to prevent a summary judgment from being given at this time. The case is reversed with directions 'c prot.eid tc tlal. The appellant is awarded costs. ar R. L. Tuckett, A. H. Ellett, Justice Utah 109. 169 P. 2d 808 (1946). became Utah Code Annotated 1943, by 2. Sec. Utah Code Annotated 1953, which is identical and pertinent here. Sec. 3. 11 Utah 2d 381, 359 P. 2d 1055 (1961). 1. WE CONCUR: 110 78-1-- 57-1-- j. 11, 12, Allan Crockett, Chief Justice E. R, R. Justice Cailister, Jr., In The Supreme Court Of The State Of Utah Justice Jack LeRoy Mecham, Julia Roth Smoot, and Thelma Mecham Hintze, Plaintiffs and Respondents, L. Tuckert, Justice F. Henri Henricd Justice No. 11749 v. FILED In The Supreme Court Of The State Of Utah January 20, 1970 Enterprises, Inc., a Utah corporation, and Barby's Cafes Incorporated, a Utah corporation, Mel-O-To- ne L. M. Cummings, Clerk Defendants and Appellants. William L. Pollei and Estrid L. Pollei, his wife, Plaintiffs and Respondents, No. 11775 ELLETT. Justice: FILED v. January 20, 1970 James W. Burger and Lenore M. Burger, his wife, L. M. Cummings, Clerk Defendants and Appellants. This is an action to quiet title to a parcel of land by the fee owners against a holder under a deed from Salt Lake County containing the following language: This conveyance is made in consideration of payment the grantee of the sum of $103.41 delinquent taxes, penalties, by interest and costs constituting a charge against the said real estate, which was sold to said county at preliminary sale for non payment of general taxes assessed against it for the year 1962 in the sum of $73.64. Dated this 30 day of June, HENRIOD, Justice: Appeal from a money judgment by the court sitting without a jury, in favor of plaintiffs Pollei, who claimed a vendor's lien against the fee title to real property vested in defendants Burger. Reversed with costs on appeal to Burgers. On May 26, 1962, Polleis, as sellers, signed a uniform real estate contract with Mr. and Mrs. Wurst. as buyers, agreeing to convey the subject property upon payment of the purchase price, provided for partly, by down payment, transfer of a piece of property, and the balance in monthly installments. The agreement was not recorded at that time. Two days later, on May 28, 1962, the Polleis conveyed the property by Warranty Deed to the Wursts, which deed promptly was recorded the next day, May 29, 1962. 1967. The plaintiffs admit that the proper procedures were followed so that had the preliminary sale actually been made for failure to pay the general taxes for the year 1962, the defendants would have good title to the land. The problem arises, however, due to the fact that there were no delinquent general taxes for the year 1962 or for any other year. The plaintiffs and their predecessors in interest have paid all general taxes which have been assessed against the property. There was a failure to pay a sewer tax in the year 1962, and the question is presented as to whether the purported sale for failure to pay general taxes suffices to deprive an owner of his land when he had failed to pay a special sewer 3. tax. Section 6, U. C.A. 1953, provides that ''unpaid and delinquent sewer shall be certified by the clerk of the district for service charges to the treasurer or assessor of the county in which the delinquent premises are located, in which case such delinquent charge together with interest and penalties, shall immediately upon such certification become a lien on the delinquent premises on a parity with and collectible at the same time and in the same manner as general county taxes. . . " 17-6-- Twenty months later, on January 4, 1964, after the Wursts had become delinquent in payments to Polleis, the real estate contract was recorded upon advice of counsel. Mr. Wurst, nonetheless, continued to pay up to March 6, 1966, when he could pay no more. He and his wife then conveyed the property to the defendants Burger on April 28, 1966. Thereafter, Polleis sued the Wursts, - not the Burgers, - and took judgment against the Wursts in July 1967, for about $3500, the balance due on the promise made in the real estate contract. The Polleis could not collect on the judgment because Mr. 'Wurst wiped it out by bankruptcy proceedings. So far as this record is concerned it wo Id .ippe-ithat the judgment obtained by the Polleis still may be alive and subsisting against Mrs. Wurst. Being unable to collect from Wursts, the Polleis sued the Burgers in this action to collect the same amount represented in the judgment, except that in this case the Polleis seek to recover by virtue of an alleged vendor's lien on the property, - a theory not asserted against the Wursts in the previous action. Nor did Polleis join the defendants Burger in the Wurst action by virtue of any such theory or cause of action. The Burgers, on appeal, urge that 1) Polleis had no vendor's lien to assert, with which contention we agree, 2) that the real estate contract was not properly acknowledged for recording purposes, and 3) that Polleis are estopped to assert a lien because of waiver, - which last two points we need not canvass in view of our conclusion as to point 1). When Polleis executed and delivered the Warranty Deed to Wursts and recorded the same, they effectively divested themselves of any title they had so far as third parties were concerned. There was nothing in the deed that even hinted there was any interest in the property reserved or claimed by the Polleis. Under such circumstances, this court has said, in Petrofesa v. D. & R. G. W. R. Co., that: The argument that plaintiffs received no conveyance or grant oi any ditch right or easement to conduct water over . . the . disregards the fact that plaintiffs received a warranty deed which is absolute in form. A warranty deed conveys the fee simple title "together with all the appurtenances, rights and privileges thereunto belonging, '' by force of Sec. U. C.A. 1943, unless some rights are reserved by the terms oi the conveyance. . . . 78-1-1- right-of-wa- The defendants contend that their purchase at the May sale cut in off all interests of the fee title owners and that the figures small type and the word "sewer" in small print appearing in the upper left-hacorner of the printed tax deed form is sufficient to show that the sale was for a delinquent and unpaid sewer charge. 18-3- 53 nd The answer to the claim seems to be that the figures and the word "sewer" are not a part of the deed at all, and, further, the preliminary sale was by the terms of the deed itself made to Salt Lake County for "non payment of general taxes. " The courts of this state have always been jealous of the rights of land owners to maintain their title unless and until the taxing authorities comply strictly with the law as written. We, therefore, hold that a purported sale of the plaintiffs' land for delinquency in general taxes is void and conveyed no interest to whatsoever the purchasers. The record does not show that there has been a valid preliminary sale for delinquent sewer taxes, and until one has been made, the rights of the title holder are not cut off. non-exist- ent The matter was decided on a motion for summary judgment, and at the time of granting the motion, the trial court reserved the question of the interest of the defendants, if any, as occupying claimants. The court further found that the defendants had relieved the property of tax liens and gave a judgment and imposed a lien on the property in favor of the defendants for the amount thereof. The judgment of the trial court is affirmed. Costs are awarded to plaintiffs. y, WE CONCUR: 1, J. recently, we decided Peterson v. Carter,3 which, on similar facts and principles, also seems apropos and applicable in the instant case. The pla int if f s action must fail, and we so conclude. Mori- Allan Crockett, Chief Justice - R. L. Tuckett, Justice F. Henri Ilenriod, Justice WE CONCUR: J. Allan Crockett, Chief Justice Joseph E. Nelson, District Judge Cailister, J. , having disqualified himself, E. R. Cailister, Jr., Justice does not participate herein. 1. Olsen v. Bagley, 10 Utah 492 (I894)VAsper v. Moon, 24 Utah 241, 67 P. 409 (1902); Bean v. Fairbanks, 46 Utah 513, 151 P. 338 (1915); Bolognese v. Anderson, et al, 87 Utah 450, 44 P. 2d 706 (1935). I i 1 |