Evans v. Meridian Investment & Trust Co.

163 P. 1165 | Or. | 1917

Opinion by

Mr. Chief Justice McBride.

1. The matter of this street assessment has been so long pending that it has attained the character of a genuine antique. In 1903 the City of Portland attempted to assess plaintiff’s property for an improvement of Albina Avenue. The assessment was resisted and set aside by the court. It then attempted to make a reassessment, which was adjudged void in the case of Applegate v. City of Portland, 53 Or. 552 (99 Pac. 890), and the city directed to proceed to reassess the property. Thereupon the city endeavored to make another reassessment, but this was resisted and adjudged invalid in Brown v. City of Portland, 73 Or. 302 (144 Pac. 121), and the case sent back with permission to the city again to reassess the property. The case of Brown v. City of Portland was heard first in the Circuit Court of Multnomah County, and the proceedings there adjudged to be valid, from which decision the property owners took an appeal to this court. While this case was pending here, the City of Portland directed a city treasurer’s sale, and at said sale the Meridianal Company bid in the property paying the full amount of the alleged assessment. It is undisputed that the sale was wholly void and passed no title to the purchaser, and the principal question here is whether the city can reassess to obtain a fund from which to reimburse the purchaser at the void sale. The uniform holding of this court has been that a purchaser at a void sale for street assessments buys at his peril, and that he has no such equities as entitle him to be reimbursed by the property holder for the sum paid by him: Dowell v. City of Portland, 13 Or. 248 (10 Pac. 308); Keenan v. City of Portland, 27 Or. 544 (38 Pac. 2); Gaston v. Portland, 41 Or. 373 (69 Pac. 34, 445); Gaston v. Portland, 48 Or. 82 (84 Pac. 1040); Hughes v. Portland, 53 Or. 370 (100 Pac. 942); Barkley v. Lincoln, 82 Neb. 181 (117 N. W. 398, 130 Am. St. Rep. 659, 18 L. R. A. (N. S.) 392). In Gaston v. Portland, supra, and again in Hughes v. Portland, supra, this court held that that part of Section 400 of the Charter of the City of Portland providing for the reassessment of property which had been theretofore sold under void assessments for the purpose of reimbursing the purchaser at such sale was void; the court using the following language:

“That part of Section 400 providing that, when the property has been sold for the payment of a delinquent assessment and the sale has been declared void, the property shall be reassessed and the proceeds paid to the purchaser in the prior sale, is unconstitutional and void, because it is, in effect, the taking of one man’s property and giving it to another.”

This disposes absolutely of the proposition that the City of Portland had any right to make a reassessment of plaintiff’s property after the void sale. The defendant Meridianal Company stands in the position of a volunteer who has paid the tax of the defendant City of Portland at its own risk. It, therefore, cannot claim reimbursement either as a matter of law or for any equitable reason. • A different rule has been intimated by this court in respect to tbe sales for ordinary taxes, which are in their nature of a character necessary for the support of the government and for the exercise of its functions, but this rule has never been extended and never will be extended to proceedings of this character, which are strictly in invitum and in favor of which no equities have ever been declared by this or any other court. The decree of the Circuit Court is affirmed.

Affirmed. Rehearing Denied.

Mr. Justice Moore, Mr. Justice Bean, and Mr. Justice McCamant concur.