257 F. 571 | D. Or. | 1919
On October 22, 1918, Coos county and W. W. Gage, sheriff thereof, were permitted, by order of this court, to implead R. S. Howard, Jr., as receiver of the Title Guarantee & Trust Company, in this cause, respecting certain litigation pending in the state court relative to state, county, and municipal taxes as
On and prior to April 30, 1904, F. B. Waite, E. D. Kinney, and J. N. Shahan were indebted to the Title Guarantee & Trust Company in the sum of $54,091.70, for which they had given their notes. On and prior to said April 30, 1904, John K. Kollock became vested, by deeds duly and regularly executed, with the title to certain lands theretofore included in what was known as the “Rice trust,” with power to sell the same to satisfy out of certain of the proceeds the indebtedness due the Title Guarantee & Trust Company. As determined by the Supreme Court of this state, in the case of Kollock v. Bennett, 53 Or. 395, 401, 100 Pac. 940, 942 (133 Am. St. Rep. 840), the deeds to Kollock were intended to transfer a complete title, and, as the court says:
“It was fully understood at the time of the execution thereof that he [Kollock] should have full power to sell the property, execute deeds to purchasers, and apply the proceeds in cancellation of the Title Guarantee & Trust Company’s claims, and account to his grantors for any sum remaining. By virtue of these transactions, respondent became, not a mortgagee, but a holder of the legal title, and liable only to account as trustee for the proceeds of sales from the property when made, and entitled to maintain a suit in his own name with, reference thereto.”
As it respects the real property a brief description of which is set forth in Exhibit A to the petition and report of R. S. Howard, Jr., receiver, filed in the above-entitled matter December 6, 1917, it was assessed by the assessor of Coos county .to John K. Kollock for the years 1907 to 1912, inclusive—possibly in some instances to John K. Kollock and F. B. Waite, and in others to Kollock and E- D. Kinney. The taxes levied in pursuance of these assessments became delinquent on the 1st of April of the year following the respective assessments. After the expiration of more than three years after the taxes became delinquent for each year, the sheriff and tax collector for Coos county issued to Coos county certificates of delinquency in the manner provided by law. Subsequently, but within six years after the taxes became delinquent for e'ach year, proceedings were instituted by Coos county to foreclose the liens for such taxes. There were five proceedings in all; the first involving the taxes for the years 1907 and 1908, and the other four involving the taxes, respectively, for the years 1909, 1910, 1911, and 1912.
Three questions are insisted upon by the receiver of the Title Guarantee & Trust Company, and are involved by the present controversy, namely:
First. Whether the proceedings in the state court to'foreclose the alleged tax liens are inoperative and void, as it affects.the receiver in this court, by reason of the fact that such receiver was not made a party to such foreclosure proceedings.
Second. Whether any of such proceedings are barred by reason of the property incumhered by the tax lien not having been sold within six years from the date of the original delinquency, in pursuance of
Third. Whether such proceedings could be lawfully maintained without first obtaining leave of this court in the Title Guarantee & Trust Company receivership matter to institute the same.
We will treat of these in their order. The statute, in case of foreclosure of tax liens by the county, declares that all persons interested in any of the property involved in such proceeding may be made co-defendants in the action. It then further provides that—
“The names ot the person or persons appearing on the tax roll in the hands of the tax collector for collection at the date of the first publication of such notice as the owner or owners of said property shall, for the purpose of this section, be considered and treated as the owner or owners, of said property.” Section 8698, Lord’s Oregon Laws.
It is further provided that, in all judicial proceedings of the kind, no assessment of property or charge for any of said taxes shall be considered illegal on account, among other things, of the property having been charged or listed in the assessment or tax roll without any name, or with any other name than that of the owner. Section 3701, Lord’s Oregon Laws.
The property in the main, at least so far as it pertains to this controversy, was assessed to John K. Kollock individually, but possibly in some instances to John K. Kollock and F. B. Waite, and perhaps in some instances to L. D. Kinney also. In no instance was the property assessed to John K. Kollock, trustee. And we may assume that such was the state of the tax rolls in the hands of the sheriff for collection at the date of the first publication of notice in each of the several tax proceedings.
The statute having prescribed the rule by which interested parties shall be ascertained, the proceeding will not be rendered nugatory, if it should turn out that the tax roll in the hands of the sheriff at the date of the first publication of notice did not give the name of the true owner of the property, resulting in the true owner not having been made a party to the proceeding. Every person is deemed to have knowledge of the taxing laws. He knows that his real property is subject to assessment, and that delinquency will follow nonpayment of taxes, and subject his property to sale. He is bound, therefore, to take heed of what is being done by the taxing officers to subject his property to the payment of taxes lawfully assessed against it. The proceeding being in rem, it is sufficient if the county make those persons parties which the law directs that it shall, and it is not fatal to the proceeding, the dictates of the .law having been followed, that a real owner should not have been made a party codefendant. In any event, public notice is given for a reasonable time, and all owners are warned of the proceeding affecting their property. Wilfong v. Ontario Land Co., 171 Fed. 51, 96 C. C. A. 293.
Now, the receiver of the Title Guarantee & Trust Company was not an owner, and the largest interest the trust company had or could have in the property was a lien thereon as security for the payment of money obligations. It was not such a person or concern as the statute requires to be made a party to the tax proceeding, and the proceedings instituted are not void or inoperative because the receiver was not made a party thereto.
Section 3717, Ford’s Oregon Faws, which provides for the sale by the county of lands acquired by it through tax proceedings, was
•‘All sales now being made under existing laws shall be completed according to the laws in existence and in force prior to the passage of this act.”
By the same act, section 3721, Lord’s Oregon Laws, was repealed in toto. The proviso, under the amendment of section 3717, has relation to sales being made by the county of lands acquired by it through tax proceedings, and not to the tax proceedings themselves. The lands involved by the several proceedings in question have never as yet been acquired by the county, and there never has rested upon it any legal obligation or duty to sell them in pursuance of section 3717, either as amended or as it stood prior to amendment; and no doubt the Legislature, seeing the futility of the county’s being able to acquire title and then make a resale of the property within six years after the original delinquency, repealed section 3721, and adopted in its stead an amendment to section 3695, Lord’s Oregon Laws, which requires that the proceeding to foreclose shall be commenced within six years from the date of the original delinquency. The repeal of section 3721, Lord’s Oregon Laws, renders it inoperative, in so far as it applies or ever applied to any of the proceedings here contested.
“A receiver is appointed upon a principle of juslice for the benefit of all concerned. Every kind of property of such a nature that, if legal, it might be taken in execution, may, if equitable, be put into his possession. Hence the appointment has been said to be an equitable execution. He is virtually a representative of the court, and of all the parties in interest in the litigation wherein he is appointed. He is required to take possession of the property as directed, because it is deemed more for the interests of justice that he should do so than that the property should be in the possession of either of the parties in the litigation. He is not appointed for the benefit of either of the parties, but of all concerned. Money or property in his hands is in custodia legis. He has only such power and authority as are given Mm by the court, and must not exceed the prescribed limits. The court will not allow him to be sued touching the property in his charge, nor for any malfeasance as to the parties, or others, without its consent; nor will it permit Ms possession to be disturbed by force, nor violence to be offered to his person while in the discharge of Ms official duties.”
See, also, Commonwealth Roofing Co. v. North American Trust Co., 135 Fed. 984, 68 C. C. A. 418.
It is equally clear that the case of In re Eppstein, 156 Fed. 42, 84 C. C. A. 208, 17 L. R. A. (N. S.) 465, is not in point, for the reason that in that case the trustee in bankruptcy had the possession of the res to be affected by the tax.
The objections of the receiver of the Title Guarantee & .Trust Company to the tax proceedings on the part of Coos county will therefore be dismissed, but without costs to either party.