115 P. 1070 | Or. | 1911
delivered the opinion of the court.
Plaintiff assigns as error, in effect, that the deeds issued for the sale of the lots for the taxes of 1904 are void for the reason that prior to the issuance thereof he tendered to the defendant the amount of the taxes and all expenses, interest, and costs mentioned therein; that the sale of the lots for the 1901 taxes is void for1 the reason that the warrant by the authority of which they were sold authorized the sheriff to sell goods and chattels only, and extended to him no authority to sell real estate; that no finding was made by the trial court to the effect that defendant had been in possession of the lots for the statutory period, and that the testimony shows no such possession by the defendant, but the contrary, and that in the absence of such possession the statute would not run.
Defendant’s counsel in their brief contend that the action, not having been commenced within three years after the recording of the deeds for the taxes of 1901, and defendant being in actual possession at the commencement of the action, he had constructive possession by virtue of the recorded.tax deeds, regular upon their face, under the provisions of Laws 1905, p. 313, and Section 3725, L. O. L., although such deeds might be void,
“The effect of the recitals in the deed may be made conclusive as to irregularities; but, if the proceedings are void, a bar to an action or a suit by the owner must be something more than the lapse of time. The owner must be ousted from possession, or the purchaser’s title quieted, to cut off the right of the owner. * * ‘As a rule, these statutes reach only those defects which do not go to the absence of authority to sell or convey. They do not operate to cure jurisdictional defects or to validate titles which are void for want of power to sell the property.’ [Citing 27 Am. & Eng. Cyc. Law (2 ed.) 987.] * * But, when the tax proceeding is void and the tax sale purchaser is not in possession, it is beyond the*47 power of the legislature to transfer to the purchaser the title of the owner by lapse of time alone. [Citing Blackwell, Tax Title, § 944; Breaux v. Negrotto, Jr., 43 La. Ann. 426 (9 South. 502)]. There must be actual possession by the purchaser before the statute begins to run. [Citing Scott v. Parry, 108 La. 11 (32 South. 188).] A limitation of time, in which the owner can bring an action or suit to contest such a title cannot operate to cut off the owner’s title, where the tax proceeding is void, except by way of prescription which depends upon actual possession under the tax deed. A deed upon a void sale cannot draw to it the constructive possession of unoccupied land. [Citing Blackwell, Tax Title, §§ 895, 944.] * * When one has a mere right of action, the legislature may unquestionably prescribe a reasonable time in which he may proceed. But in case he has both title and possession, and the legislature attempts to create the necessity for suit by converting an estate in possession into a mere right of action, and then limit the time in which the action may be brought, it is exceeding its power. [Citing Blackwell, Tax Title, §§895, 944.]”
See, also, Ayers v. Lund, 49 Or. 303 (89 Pac. 806: 124 Am. St. Rep. 1046); Dufur v. Healy, 56 Or. 49 (107 Pac. 692), and Groesbeck v. Seeley, 13 Mich. 329, in which last named it was held that if proceedings to sell for taxes were illegal no lapse of time could change their character, and they could never therefore become legal.
“If the tax purchaser obtains possession, and holds it until protected by a limitation law, he then becomes safe, not because his tax title is any more regular, but because the holder of the better title has become incapable of asserting it. As an illegal tax title is a nullity, it cannot of itself divest or affect the true title in any way and the true owner cannot be lawfully compelled to incur expense or take active measures to get rid of it unless he sees fit. But if he becomes ousted, whether by a pretended tax title holder or by any adverse claimant, he can only secure the enjoyment of his rights by active measures, and the party in possession may then rely on such possession until it is lawfully assailed by suit or otherwise within the period of limitation.”
“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.”
“The purchaser has no title to the land until the time for redemption has expired. He has consequently no constructive possession of the premises.” Cooley, Taxation, p. 1051.
“It may be laid down as a principle of universal law that, in order to enforce these forfeitures, the courts require the same degree of strictness which is applied to ordinary tax sales, in order to divest the title of the owner. * * The law must be strictly construed in favor of the owner. * *” Blackwell, Tax Title, § 1030.
“A tender of the proper amount by one having a right to redeem to the proper officer, and within the time allowed by the act of redemption, will operate to defeat the title of the purchaser at the tax sale. It makes no difference whether money is accepted or not. A tender of a sufficient amount within the time limited by law ipso facto works a redemption.”
Particulars of the tender may be waived by the refusal of the purchaser to receive redemption on some collateral ground. Section 827 of the same authority says:
“A lawful tender of the tax to the officer authorized to receive it is tantamount to an actual payment, and ipso facto divests the authority of the officer to sell such land for taxes.”
For these reasons, we think there was error. The judgment of the lower court is reversed, and the cause remanded with directions to enter judgment, on the findings of fact, in favor of plaintiff. Reversed.