163 P. 425 | Or. | 1917
delivered the opinion of the court.
In adverting to the stipulation in .this opinion reference will generally be made to the paragraphs thereof only. An examination of that part of paragraph 6 relating to the land of Percy H. Blyth will show that the annual burden undertaken to be imposed in the year 1909 upon “Tax lot No. 3” was $45.50, on account of which only $34.07 was paid, thereby leaving dne $11.42, to evidence which delinquent certificate No. 242 was issued. So far as can be determined from an inspection of this entry on the tax-roll the delinquency there noted related to and remained a charge upon the entire 33.88 acres of land. The description of a part of the plaintiff’s premises, as given in the certificate mentioned, is set forth in paragraph 9, where it will be observed the delinquency applies to 8.2 acres in “Tax lot No. 3,” the property of Percy H. Blyth in the section, township, and range hereinbefore specified; but in what part of that lot the particular area last mentioned is situated and upon which the tax was not paid, it is impossible to determine. In the suit to foreclose the alleged lien and in the decree rendered therein it will be remembered that the description of the premises, as set forth in paragraph 11, reads: “No. 242. Frac, lot 3, sec. 31, T. 1 N., R. 1 E., 8.2 acres.”
“including a full and precise description of the lands and lots owned by each person therein named * * which description shall correspond with the plan or plat of any town laid out or recorded, * * but no assessment shall be invalidated by a mistake in the name of the owner of the real property assessed * # if the property be correctly described; and provided further, that where the name of the true owner, or the owner of record, of any parcel of real property shall be given, such assessment shall not be held invalid on account of any irregularity in the description; provided, such description would be sufficient in a deed of conveyance from the owner; or on account of any description upon which, in a contract to convey, a court of equity would decree a conveyance to be made”: Section 3586, L. O. L.
“The assessor of each county shall make a plat of the government surveys, and of all town plats within his county,- and shall note therein, or in a present ownership book or list, the owner of each tract of land, and of each town lot; and in counties where the assessor shall describe the land in the roll in the order of its location upon the grounds he shall keep a taxpayers’ index for each year, which shall be a public record subject to general inspection; and in such index*617 shall be entered the name of every taxpayer against whom any tax shall be charged in the county, in alphabetical order, * * and shall refer to the pages and lines of the roll where the assessment of such taxpayer may be found”: Section 3588, L. O. L.
“The assessor shall set down in the assessment-roll, in separate columns, and according to the best information he can obtain:
“1. The names of all taxable persons in his county assessable by him.
“2. A description of each tract or parcel of land to be taxed, specifying under separate heads the township, range, and section in which the land lies, in tracts not exceeding a quarter section according to the government survey, except where the same are described by metes and bounds; or, if divided into lots and blocks, then the number of the lot and block”: Section 3593, L. 0. L.
“When lots are situated in any city, village, or town a plat of which shall have been recorded, the city, village, or town in which ■ the same are situated shall be specified in the assessment roll”: Section 3594, L. 0. L.
“If the land assessed be less or other than a subdivision according to the United States survey, unless the same be divided into lots and blocks so that it can be definitely described, it shall be described by giving the boundaries thereof, or by reference to a description thereof by book and page of any public record of the county where the same may be found, or in such other manner as to make the description certain”: Section 3597, L. 0. L.
“It shall be sufficient to describe lands in all proceedings relative to the assessing, * * or selling the same for taxes, by initial letters, abbreviations, figures, fractions, and exponents to designate the township, range, section, part of section, distance, course, bearing, and direction, and also the number of lots and blocks or part thereof”: Section 3598, L. 0. L.
“In all proceedings for the assessment, levy, or collection of taxes, or sale of property, or other proceedings for collection of delinquent taxes, said designa*618 tion. as provided in Sections 3597 and 3598 hereof shall be a sufficient description, and it shall not be necessary to enter in such proceedings a description of such tract by metes and bounds”: Section 3599, L. O. L.
In West Portland Park v. Kelly, 29 Or. 412 (45 Pac. 901), it was held that “block books,” containing descriptions of land and kept by the county assessor for convenience in performing his official duties, were not public records, and entries so made therein were only private memoranda. At page 419 of the opinion in that case it is said:
“Had the block books or other documents kept by the assessor been public records, so that the entries made therein would have constituted notice to all persons whose property might be affected thereby, the plaintiff could have relied upon his inspection of them; but such books and documents, though convenient for and valuable aids to the officer, are no part of the assessment roll, and convey no notice to the taxpayer of their contents.”
In order to correct the defect thus adverted to Section 3588, L. O. L., was enacted, which required the assessor of each county to make a plat of the government surveys and of town plats within his county and to note therein, or in a present ownership book or list, the owner of each tract of land and of each town lot; and made such plats public records subject to general inspection. A casual perusal of that section of the code would seem to limit the entries which might legally be made in the public records specified to lands indicated by plats of the government surveys and to lots and blocks designated on recorded city, village, and town plats. "When, however, that part of the statute is read in connection with Sections 3597 and 3599, L. O. L., which should be done in order to ascertain and determine the entire scope and effect of the law gov
“Summons shall be served and returned in the same manner as summons in a civil action is served in the Circuit Court”: Section 3696, L. 0. L.
It will be kept in mind that paragraph 12 shows the plaintiff was and is a resident of Hillsboro, Oregon, but that in the suit to foreclose the tax liens evidenced by the delinquent certificates the summons was attempted to be served upon him only by publication. The stipulations fail to disclose why such constructive service of process was resorted to, or to show what effort, if any, was made to ascertain the residence of the plaintiff. The method of securing jurisdiction of the person by a constructive service of process is not in conformity with the principles of the common law, but is given by statute, which enactment being in derogation of the ancient rule is to be construed strictly: Heatherly v. Hadley, 4 Or. 1; Odell v. Campbell, 9 Or.
“The court which rendered it, although one of general jurisdiction, was then exercising a special power conferred upon it by statute, and not according to the course of the common law. And in such cases, even a court of general jurisdiction must strictly comply with the requirements of the statute in its proceedings, and this compliance must affirmatively appear from tibe record itself; and unless it does so appear, no presumption will be indulged to sustain the validity of its judgments or decrees. ’1
To the same effect see Odell v. Campbell, 9 Or. 298; Furgeson v. Jones, 17 Or. 204 (20 Pac. 842, 11 Am. St. Rep. 808, 3 L. R. A. 620); Willamette Real Estate Co. v. Hendrix, 28 Or. 485 (42 Pac. 514, 52 Am. St. Rep. 800); Knapp v. Wallace, 50 Or. 348 (92 Pac. 1054, 126 Am. St. Rep. 742); Fishburn v. Londershausen, 50 Or. 363 (92 Pac. 1060, 15 Ann. Cas. 975, 14 L. R. A. (N. S.) 1234); Smith v. Whiting, 55 Or. 393 (106 Pac. 791); De Vall v. De Vall, 57 Or. 128 (109 Pac. 755, 110 Pac. 705).
The stipulation not having assigned any reason why the summons was attempted to be served by publication did not state facts sufficient to uphold the decree rendered.
“The case of Welch v. Clatsop County, 24 Or. 452 (33 Pac. 934), lays down a salutary rule to be applied to cases of this kind by requiring the party claiming relief against an illegal or irregular tax to tender what is fairly and equitably due before equity will relieve him. ’ ’
In all suits hereafter instituted for equitable relief from the imposition of a general tax upon specific real property the rule last referred to will be applied, and if it be finally determined that any part of the money
Reversed and Remanded.