after stating the facts, delivered the opinion of the court.
1. It is well to observe at the outset that this is not a suit to enjoin the collection of taxes, nor is it a controversy between the taxpayer and the county authorities. *115It is a suit brought by the owner of real estate to prevent a cloud upon his title by a sale on a void process for taxes assessed against a former owner ; and therefore Welch v. Clatsop County, 24 Or. 452 (33 Pac. 934), and similar decisions, holding that a court of equity will not interfere by injunction at the suit of a taxpayer to restrain the collection of a tax merely because of an alleged illegality or irregularity appearing upon the face of the assessment, has no application to the case in hand. This suit comes within the well-recognized jurisdiction of courts of equity to prevent clouds upon title : 3 Pomeroy, Eq. Jur. § 1398 ; Johnson v. Hahn, 4 Neb. 139.
2. The contention for plaintiffs is that the warrant under which the sheriff is threatening to sell their property is void, because the affidavit of June 30, 1896, attached to the return of delinquent taxes, fails to show that the sheriff had not, upon diligent inquiry, been able to discover any goods or chattels belonging to Monteith upon which to levy. A reference to the provisions of the statute, and to some elementary principles of law, will be sufficient to indicate the soundness of this position. By Section 2794, Hill’s Ann. Laws, as amended in 1893 (Laws, 1893, p. 118), the county clerk is required, within fifteen days after the apportionment of taxes, to make a certificate of the several amounts apportioned to be assessed upon the taxable property in his county, etc., and deliver the same to the sheriff, together with a transcript of the assessment roll, to. which he shall attach a warrant commanding the sheriff to collect the taxes charged in such list; to make the same by sale of the goods and chattels of the respective parties named on such list, if necessary; to pay over all money collected by him to the county treasurer, and return such warrant and list to the county court within a specified time. Sections 2803-2807 provide for the levy upon and sale of the goods *116and chattels of the taxpayer in case he shall refuse or neglect to pay the tax imposed on him. Sections 2809-2811 provide that, if any of the taxes mentioned in the tax list shall remain unpaid, and the sheriff shall be unable to collect the same, he shall make out a statement thereof, and submit the same to the county court within a certain designated time, to which shall be attached his affidavit “that the facts set forth in said statement are correct; that the sums therein returned as unpaid are not paid; and that he has not, upon diligent inquiry, been able to discover any goods or chattels belonging to the persons charged with such unpaid taxes whereon he could levy the same, — which statement and affidavit shall be filed with the county clerk, and he shall thereupon be credited by the county court with the amount of taxes so returned as unpaid and doubly assessed.” Section 2814 makes it the duty of the county clerk, within ten days after such return, to miike from the delinquent tax roll a true and correct list of the taxes returned as unpaid, and a correct description of the lands or town lots assessed, if the same can be made, and deliver the same to the sheriff of the county, with a warrant attached commanding him to levy upon the goods and chattels of the delinquent taxpayer, and, if none be found, then upon the real property, as set forth in the tax list, or so much thereof as shall satisfy the amount of taxes so charged, with costs and expenses. Section 2815 provides that a warrant for the purpose of collecting delinquent taxes shall be deemed an execution against property, and be executed and returned in like manner; section 2816, that, if no personal property be "found whereon to levy the warrant, or if that levied upon be not sufficient to satisfy the same, it must be levied upon any real property of the person, firm, or corporation against whom the taxes are levied or charged, or sufficient thereof to satisfy such warrant; section 2817, *117that, in case of any delinquent tax levied upon real property, the owner being unknown or absent, or having conveyed the same to another by deed or otherwise, the warrant shall be executed by levying upon any property he may own for the amount of taxes levied on all his property in the county. Section 2818 reads as follows : “All taxes heretofore or hereafter levied by or in any county in this state remaining unpaid or delinquent may, upon the order of - the county court directing that a warrant be issued, be collected from the land taxed, or the person, firm or corporation, whether known or unknown, against whom the same were levied by warrant, in the manner and with the effect provided in this chapter for the collection of delinquent taxes.”
3. It is apparent from these several provisions of the statute that personal property is the primary fund to which resort must be had for the compulsory payment of taxes. There is no power or right given by statute to sell land, except in the event that the sheriff cannot, upon diligent inquiry, discover any goods or chattels belonging to the persons charged with such taxes whereon he could levy the same, and the only evidence of that fact is the affidavit which the officer is required to attach to the delinquent list. Mr. Burroughs, in discussing this question, says: “The owners of real estate being primarily liable for the payment of the tax assessed, after the tax list has been placed in the hands of the proper officer for collection, the first step thereafter is an official return by such officer showing the failure to make the tax out of the goods and chattels of the owner, as directed by his precept. Such a return by the officer is called the ‘delinquent list.’ It is returnable to some officer or some court of inferior jurisdiction, or some court of general jurisdiction vested with special powers as to tax proceedings. The return of this delinquent *118list is absolutely essential. Where the statute prescribes the form of the return, it must be followed, and all requirements as to the time in which it is to be made, and its authentication, must be strictly followed. If the collector or other officer is required to make oath, it must be complied with, and all facts required to be stated in the affidavit must appear:” Burroughs, Tax’n, § 111. And Mr. Cooley, in speaking on the same subject, says : “Where a tax against lands is assessed to a resident, and is a personal charge against him, the statutes, with almost unvarying uniformity, have made the personal property of the person taxed the primary fund for the satisfaction of the tax, and have given a remedy for enforcing payment from it. Until that remedy has been exhausted, no authority exists to go further. * * * To authorize further proceedings, * * * there must be the proper official evidence that * * * the remedy against the personalty is exhausted, and * * * that the taxes are still unpaid. This evidence will consist of such official return, affidavit, or other document by the collector as the statute may indicate, and it must be made in due form of law, and at the proper time. A return made prematurely is void, though it be but a single day before the time ; for it shortens to that extent the period allowed to the taxpayer, * * * and thus deprives him of a legal right. So a return is void which fails to set forth all the facts that the statute requires shall be shown by it. If the collector is required to demand the tax, his return, it would seem, should show that he has done so ; if he is required to make collection by distress and sale of goods, if any can be found to levy upon, there should be such a showing of diligent search for goods, and failure to find them, as would be required of officers to whom executions are committed for service. In other words, the return should show full and com*119píete compliance -with all the conditions which, under the statute, are to precede a resort to the land. Such is unquestionably the general conclusion of the authorities Cooley, Tax’n (2 ed.), 454.
4. This doctrine is but an application of the general rule that in an ex parte proceeding for the sale of land under special authority great strictness is required, and it must affirmatively appear that every substantial requisite of the law has been observed. Proceedings for the collection of taxes are necessarily summary and ex parte, and hence the rule is universal that all statutory requirements must be strictly and punctiliously complied with, in order to authorize the sale of land therefor: Blackwell, Tax Titles (3 ed.), 64, 66 ; Thatcher v. Powell, 19 U. S. (6 Wheat. 119); Simms v. Greer, 83 Ala. 263 (3 South. 423); Wartensleben v. Haithcock, 80 Ala. 565 (1 South. 38). These are practically elementary principles, and do not require a further citation of authorities.
5. The claim of the defendants, however, is that the affidavit required by section 2811 to be attached to the delinquent list is only for the information of the county court, and as a basis for its settlement with the sheriff. But, in our opinion, the statute is not susceptible of this construction. The evident object of the affidavit is to form the basis for the subsequent issuance of a warrant authorizing the sale of real property. As we have already said, personal property is the primary fund to which resort must be had, and it is only when such property of the taxpayer cannot be found, after reasonable diligence, that resort may be had to the real estate.
6. Again, it is claimed that the county court is authorized and empowered by section 2818 to direct that a warrant be issued for the collection of taxes remaining unpaid or delinquent from the land taxed, without regard to previous irregularities, and that the warrant in question *120was issued in pursuance of such an order. The proper construction of the' section referred to has often been a mooted question in this court, and no satisfactory interpretation thereof has yet been suggested. But, whatever its significance, an inspection of the order made by the county court in September, 1897, shows that it does not comply with the provisions of the statute by ordering and directing that the tax be collected from the land taxed, and that a warrant issue for that purpose. It is simply an order that the sheriff proceed after a certain date to sell all property delinquent for taxes for the year 1895, which is nothing more than a direction to him to proceed to execute any process in his hands for that purpose.
7. We conclude, therefore, that the failure of the sheriff, to make and attach to his return of delinquent taxes the affidavit required by section 2811 renders the warrant subsequently issued void, so far as it commands him to levy upon and sell the real estate. The decree of the court below is therefore reversed, and a decree will be entered here in favor of the plaintiffs.
