Ferguson v. Kaboth, 73 P. 200

Ferguson v. Kaboth

73 P. 200 | Or. | 1903

Lead Opinion

Mr. Justice Bean

delivered the opinion.

This is a suit to quiet title to real estate. From March 1 to October 3, 1898, Mary A. Twilight was the owner in fee simple and in possession of the property in controversy. On the 11th of April of that year a decree was rendered by the circuit court in favor of C. H. Page and against her, foreclosing a mortgage on the property, and ordering a sale thereof to satisfy such decree. In pursuance of an execution issued thereon the property was sold to Page by the sheriff May 23, the sale confirmed June l,and the sheriff’s deed delivered October 3, 1898. Page immediately went into possession, and afterward conveyed to the plaintiffs. Some time between the 1st of March and 26th of September the assessor listed the property for taxation to Mrs. Twilight,and on the 26th of October the county made the levy of taxes for the year 1898. The assessment roll, with the tax extended, or pretended tobe extended, was delivered to the sheriff in February, 1899, and such proceedings were thereafter had that an attempted sale of the property was made to the county for alleged delinquent taxes for the year 1898. The defendant has succeeded to the interest of the county.

1. Several objections are made to the validity of the *420defendant’s title on account of alleged defects in the proceedings for the assessment and collection of the tax and the sale of the property, but it is unnecessary to consider them, because the case cannot be distinguished in principle from Middleton v. Moore, 43 Or. 357 (73 Pac. 16). That was a suit to foreclose a mortgage. The defendant set up title to the mortgaged premises under a tax deed, based upon an assessment and levy of taxes made subsequent to the execution of the mortgage. It was held that, under the statute in force in 1898 (being the one applicable to the case in hand), the mortgage took precedence over the tax deed, that the tax was not a lien upon the property, and that the purchaser at the tax sale acquired only the interest therein of the person in whose name it was listed on the assessment roll. Mrs. Twilight had no interest in the land in controversy, either at the time of the levy of the tax thereon or of the sale, and therefore, under the doctrine of the Middleton Case, the purchaser acquired none.

2. Some stress seems to be laid on Section 2846, Hill’s Ann. Laws 1892, as indicating an intention to impose the duty of paying taxes upon the grantee of land who acquires the title thereto after the assessment, and before the date of the warrant authorizing the collection thereof. This section, however, was simply designed to define the respective rights of a grantee and grantor of land upon which taxes had been assessed, as between themselves. Under the statute, property was required to be listed to the taxpayer as of the 1st of March of each year: Laws 1893, p. 6. He became personally liable for the payment of the tax thereon, which might be enforced by seizure and sale of his personal property. Notwithstanding he might sell and convey real estate after the 1st of March, and before the date of the tax warrant, he could be compelled to pay the tax; but, if so, the statute gave him a *421remedy over against his grantee, unless there was an express agreement between them on the subject.

3. Much reliance is placed upon the act of 1901 which attempts to cure defects in tax titles : Laws 1901, p. 71. But assuming the several provisions of the act relied on to be valid, it cannot aid the defendant in this suit. The legislature may cure, retrospectively, irregularities and imperfections in tax proceedings, but it cannot infuse life into an utterly void proceeding, or take the property of one person and transfer it to another: Denny v. McCown, 34 Or. 47 (54 Pac. 952); Teralta Land Co.v. Shaffer, 116 Cal. 518 (48 Pac. 613, 58 Am. St. Rep. 194); Maguiar v. Henry, 84 Ky. 1 (4 Am. St. Rep. 182); Larson v. Dickey, 39 Neb. 463 (58 N. W. 167, 42 Am. St. Rep. 595). Under the law as it stood at the time of the tax sale, the purchaser acquired no title to the property in controversy, because it did not belong to the person in whose name it was listed for assessment at the time the tax was levied or the sale made, and no subsequent act of the legislature could enlarge the purchaser’s rights, or vest in him the title then held by another. The effect of the defendant’s contention, if sustained, would be to vest in the purchaser at the tax sale the title, not of Mrs. Twilight, but of Page, and this the legislature had not the constitutional right to do : Merrill v. Dearing, 32 Minn. 479 (21 N. W. 721); McCord v. Sullivan, 85 Minn. 344 (88 N. W. 989, 89 Am. St. Rep. 561); Black, Tax Titles (2 ed.), § 353. The decree of the court below is therefore affirmed. Affirmed.

Rehearing

On Motion for Rehearing.

Mr. Justice Wolverton

delivered the opinion.

4. In their petition for rehearing counsel for appellant strongly urge upon the attention of the court the point made in their original brief and argument, but not con*422sidered in the opinion, namely, that the plaintiffs could not maintain their suit to quiet title without first having tendered and paid into court the amount of the taxes and costs for which the premises were sold at the tax sale, together with all taxes since paid by the purchaser, and interest, as provided by statute (B. & O. Comp. § 3128, and latter clause of section 3135). The point was not deemed vital, which accounts for its being passed over. We have now carefully reexamined the question involved, and, notwithstanding the able and exhaustive presentation thereof in the petition, are borne to the same conclusion as before. The simple solution of the problem is to be found in the fact that the foreclosure by Page of his mortgage cut off the tax charge against Mary A. Twilight for which her interest in the property was subsequently attempted to be sold, as there can be no reasonable doubt from the record that the mortgage antedated the tax. Mrs. Twilight therefore was taxed upon her derivative title, or such interest only as she had in the property subject to the mortgage; and when the mortgage was foreclosed, and a deed executed in pursuance thereof, it supplanted the estate taxed, and Page succeeded to the absolute fee-simple title, so that there was no vestige of her estate left upon which to found the tax title. The plaintiffs are not claiming through Mrs. Twilight’s derivative title, the one that was assessed to her, but through a superior and paramount title, one that was affected in no way by the tax proceedings and sale; so that they are not asserting title to the land as against a party claiming under a tax sale of their estate or title, within the purview of the statute sought to he invoked. This seems to us to be the logical sequence of the doctrine of Middleton v. Moore, 43 Or. 357 (73 Pac. 16), which controlled the main opinion, and which we yet believe to be sound. Rehearing Denied.