Harpold v. Arant

130 P. 737 | Or. | 1913

Mr. Justice Moore

delivered the opinion of the court.

This is an appeal by the plaintiff from a decree dismissing his suit to determine an adverse title to vacant and unimproved real property in Klamath County, Oregon. The facts are that on July 2, 1898, Roscoe R. Guilliams obtained a warranty deed for the northeast quarter of the southeast quarter of section 11, in township 39 south, of range 11 east, of Willamette Meridian. This land having been assessed to the owner, who failed to pay the tax imposed, the sheriff of that county published a notice to the effect that by virtue of a warrant attached to certain delinquent tax rolls of that county, commanding him to levy upon the goods and chattels of the taxpayers named, and if none could be found then upon the real property described in such rolls or so much thereof as might be necessary to satisfy the amount of taxes charged thereon, with costs and expenses, and, being unable to find any goods or chattels belonging to the taxpayers therein named, he had levied upon the real property set forth in such rolls, including that of R. R. Guilliams, tax, $2.85, describing the land as hereinbefore set forth, and that on Saturday, December 28, 1901, at the hour of 10 o’clock A. M., “at the front door of the courthouse” in said county and State, he would sell the above-described premises at public auction to the highest bidder for cash, subject to redemption, to satisfy taxes, costs, and accruing costs. The return of the sheriff is to the effect that at the time and place and in the manner stated in the notice he offered the premises for sale in separate parcels to the highest bidder for cash, and sold the same to W. F. Arant the defendant herein, for $4.15, which was the whole price bid, being for taxes, $2.82, and costs, $1.80, on the property of R. R. Guilliams, leaving in his hands a surplus of three cents. No redemption from such sale having been made or tendered, the sheriff executed to the purchaser a deed to the real property, which instrument was recorded December 4, 1905. Four months and' 14 days thereafter, to wit, on April 18, 1906, A. D. Harpold, the plaintiff herein, commenced an action against Ross Guilliams in the circuit court of Klamath County, Oregon, to recover $1,277, the amount of the latter’s promissory note, and $150 as a reasonable attorney’s fee. At the same time a summons was issued and returned by the sheriff with an indorsement thereon to the effect that he was unable to find the defendant within the State and county. Harpold also filed with the clerk an affidavit for an attachment and an undertaking therefor, whereupon á writ of attachment was issued, but the transcript does not contain a copy thereof nor of the return that should have been made thereto. The command of the writ and what the sheriff did in obedience thereto can only be inferred from Harpold’s affidavit for the service of summons by publication, filed April 19, 1906. The entire sworn declaration in relation thereto reads as follows:

“That on the 19th day of April, 1906, a writ of attachment was duly issued out of said circuit court in this cause, directed to the said sheriff and commanding him to attach and safely keep all property of the said defendant; Ross Guilliams, within Klamath County, not exempt from execution, or so much thereof as might be necessary to satisfy the plaintiff’s demand, viz., the sum of $1,277 and $150 attorney’s fees and costs and disbursements of said action; that said writ of attachment was placed in the hands of said sheriff on the 19th day of April, 1906, for execution; that the property was attached by said sheriff on the 19th day of April, 1906, the northeast quarter of the southeast quarter, section 11, township 39 south, range 11 east, W. M., in Klamath County, Oregon.”

The complete part of Harpold’s affidavit with regard to the effort that had been made to find Guilliams within the State and to determine his place of residence is as follows:

“That said defendant cannot be found within the State of Oregon after due diligence, and that diligent search and inquiry has been made by this affiant of persons most likely to know of the whereabouts of said defendant, Ross Guilliams, as follows, to wit: On April 11, 1906, affiant inquired of J. C. Rutenic of Klamath Falls, Oregon, and the said J. C. Rutenic informed the affiant that the whereabouts of the said defendant, Ross Guilliams, was not known to him, the said J. C. Rutenic. That affiant likewise inquired of Crede McKindry, J. W. Brown, and Walter Broadsword, of Bonanza, Oregon, and all of said persons informed affiant that they did not know where the said defendant was, and also stated that they did not think he was within the State of Oregon. That I have repeatedly inquired of the postmaster at Bonanza, Oregon, the place where the said defendant, Ross Guilliams, formerly resided and where he was accustomed to get his mail, and was informed by the said postmaster that he did not know where the said defendant, Ross Guilliams, is. That all the parties of whom the affiant inquired, and who are mentioned herein, were formerly neighbors and acquaintances of the said defendant. Affiant therefore says that personal service of said summons cannot be made on said defendant, Ross Guilliams, and he asks for an order that service of summons may be made by publication thereof in the Klamath Falls Express, a weekly newspaper printed and published at Klamath Falls, Oregon, and a paper of general circulation and one most likely to reach defendant, Ross Guilliams. That said Ross Guilliams is a necessary party to said action. That said defendant is not now within the State of Oregon and that he has departed therefrom for the purpose of defrauding his creditors or to avoid the service of summons in this case. That said Ross Guilliams has a large number of creditors in this county and State, and that said Ross Guilliams has departed therefrom for the purpose of defrauding them. That this affiant is a creditor of the said defendant, Ross Guilliams, as will more fully appear from the cause of action hereinbefore set forth and to which reference is hereby made.”

Based upon such affidavit, the judge of the court on September 12, 1906, or 146 days after the sworn declaration was filed, made an order reciting the substance of the affidavit and directing service of the summons by publication in the Klamath Falls Express, a weekly newspaper published in that county, once a week for six consecutive and successive weeks, the first publication to be made on Tuesday, September 20, 1906, and the last on November 1st of that year. The affidavit of the printer shows that the summons was published in the designated paper in its regular successive issues, beginning September 27, 1906, a week later than ordered, and ending at the time prescribed. Attached to the affidavit of the printer is a copy, of the summons printed, which process required Guilliams to appear and answer the complaint on or before November 1, 1906, and as far as material herein the printed copy reads as follows:

“This summons is published in the Klamath Falls Express, a weekly newspaper printed and published at Klamath Falls, Oregon, by order of Hon. Henry L. Benson, Judge of the First Judicial District of Oregon, and dated September 27, 1906. The first publication to be made on Thursday, the 27th day of September, 1906, and the last publication to be made on Thursday, the 1st day of November, 1906.”

Founded on such proof, the court on December 4, 1906, determined that Guilliams was in default, and on the next day further found that his real property herein-before described had been attached, and thereupon gave judgment in favor of Harpold in the sums demanded in the complaint and also ordered the land so attached, or so much thereof as might be necessary, to be sold in the manner prescribed by law to satisfy the sums so awarded and the costs.and disbursements of the action, and the accruing costs. An execution was issued on the judgment and pursuant to the command thereof the sheriff’s return indorsed upon the writ shows that, after giving the required notice, he, on April 15, 1907, sold the real property in question “at the front door of the courthouse” in Klamath Falls to A. D. Harpold, the plaintiff herein, for $1,442.

W. F. Arant, the defendant herein, as plaintiff, commenced a suit April 17, 1907, against Roscoe R. Guilliams in the circuit court of Klamath County, Oregon, to quiet his title to the demanded land under the tax sale. Harpold, however, was not made a party. In the suit last mentioned the court on June 17, 1907, found that the summons had been duly served upon Guilliams by publication for six successive weeks in the Evening Herald, a newspaper of general circulation published in Klamath Falls, in that county, the first publication having been made April 19, 1907, and the last May 31st of that year, as appeared by the affidavit of the printer of that paper, all done in pursuance of and in conformity with the order for the publication thereof, and that the time for answering having expired, and no appearance having been made by Guilliams, it was considered that he was in default, and thereupon a decree was given for Arant as prayed for in his complaint, to the effect that Guilliams had no estate or interest in the real property in question and enjoined him from asserting any claim thereto adverse to that of Arant. In the case of Harpold against Guilliams the sale of the real property so made upon execution was confirmed, and, no redemption having been made or tendered, the sheriff on November 17, 1909, executed a deed of the premises to the plaintiff in that action, reciting in the deed that the sale of the land was made at public auction “in front of the courthouse in Klamath Falls, in said County of Klamath.”

The foregoing is a brief resume of the means whereby the respective parties assert a title to the real property involved herein. Predicated upon such evidence the court found that the summons in the case of Harpold against Guilliams did not correspond with the order of the court therefor; that the affidavit for the publication of process in that case did not state that Guilliams was the owner of any real property within that county, or affirm that his postoffice address was unknown; that the order of publication did not direct a copy of the complaint and of the summons to be mailed to his last known address; that the real property was publicly sold for delinquent taxes to Arant, the defendant herein, who thereafter secured a sheriff’s deed pursuant to such sale; that the tax proceedings and the deed executed in conformity therewith were regular on their face; and that Arant had secured a decree against Guilliams quieting his title to the real property. Based on these findings, the court deduced as conclusions of law that the judgment so obtained by Harpold was void for want of jurisdiction of the subject-matter and of the person of Guilliams, that by reason thereof the sale of the land upon execution and the deed made in pursuance thereof were likewise void, and that Harpold was not the owner of the real property hereinbefore described or of any interest therein, or entitled to the possession thereof; but that Arant was the owner in fee of the land and entitled to its possession, and, having given a decree in accordance with such findings, the plaintiff undertakes to review such action.

It is argued by plaintiff’s counsel that since it appears from an inspection of the sheriff’s return, indorsed upon the tax warrant, that the real property so assessed to Guilliams was sold for delinquent taxes “at the front door of the courthouse,” the sale was for that reason void, and, such being the case, an error was committed in rendering the decree now brought up for consideration. It is further insisted by plaintiff’s counsel that though there may not have been a literal compliance with all the requirements of the statute in respect to the affidavit for the service of the summons by publication, or the order therefor, or the proof thereof, the trial court having originally held in the case of Harpold against Guilliams that the means adopted for that purpose were sufficient, to confer jurisdiction of the subject-matter and of the person, the determination thus reached is controlling in the cases at bar, in which the defense is a collateral attack upon plaintiff’s title to the land, and, this being so, errors were committed in concluding that the judgment rendered in that action was void for any reason, and in denying the relief prayed for in the complaint herein.

As the defense interposed was not maintained at the time, or in the manner, or by the person authorized by law to avoid or correct the judgment given in the case of Harpold against Guilliams, it will be taken for granted, without deciding the question, that the defense is not a direct attack, and for that reason it can be successful only upon showing either that Guilliams was divested of his title by the tax proceedings before the land was attached, or by proving that the judgment in the case of Harpold against Guilliams was void for want of power in the court to proceed in that action. Morrill v. Morrill, 20 Or. 96 (25 Pac. 362: 11 L. R. A. 155: 23 Am. St. Rep. 95).

It will be remembered that the tax deed executed to Arant upon a sale of the land for delinquent taxes was recorded December 4, 1905, and that the real property was not attached until April 19, 1906. If therefore the tax proceedings were sufficient to divest Guilliams of his legal title, no lien upon the premises nor any estate therein could have been created by the attachment.

The law in force December 28, 1901, when Guilliam’s land was sold for delinquent taxes,.as far as involved herein, was as follows:

“All sales for delinquent taxes, as provided in this chapter, upon real estate, must be made as otherwise made in selling real estate upon execution, at the courthouse door.” Section 2826, Hill’s Ann. Laws.

The plaintiff’s counsel in support of the principle contended for cites the case of Rubey v. Huntsman, 32 Mo. 501 (82 Am. Dec. 143), where a statute of Missouri required sales of land for delinquent taxes to be made “before the courthouse door,” and, it appearing that a sale of land was made for delinquent taxes within the courthouse, it was held that the sale was void.

In the case at bar, the statute having commanded a sale of land for delinquent taxes to be made “at the courthouse door,” was the sale herein void because it was made “at the front door of the courthouse”? Does the transposition of the language of the enactment and the employment of the word “front” to qualify the word “door” render the sale ineffectual? As we view the statute, since the sale of land for delinquent taxes is required to be held “at the courthouse door,” the word “the” as thus used fairly implies the front door of that building, and not a side' or any other door thereof. The purpose of the enactment evidently was to have the sale made in the most public place at the county seat, and, since such place is the space “at the front door of the courthouse,” where persons visiting that building to transact business with the county officers or for any other purpose on the day appointed for the sale of land for delinquent taxes, they would necessarily see and hear what was transpiring, and, since no other place is as well calculated to attract the attention of visitors at the courthouse, the use of the word “front” and the change of the arrangement of the words, when their intended meaning remains, did not render the sale of the land for delinquent taxes void for that reason. Indeed, the sale of the land>to the plaintiff herein upon execution was advertised by the sheriff to be made at the same place, and the return of that officer upon the writ of execution shows that the sale was conducted thereat.

The foregoing is the only objection of importance made to the tax proceedings, and, believing that it is not sufficient to defeat the title of Arant, it follows that no lien was created upon the premises by the attachment, and hence it is unnecessary to consider whether or not the judgment in the case of Harpold against Guilliams is void for any reason.

The decree should be affirmed, and it is so ordered.

Affirmed.