112 P. 1083 | Or. | 1912
Opinion on the Merits
On the Merits.
[119 Pae. 769.]
Statement by
This is a suit to foreclose a mortgage on the N. 14 of S. W. 14 of section 12, township 1 S., range 4 E., W. M., executed by defendant Arthur Stipe to plaintiff on July 8, 1904, to secure a note for $465. From a decree in favor of plaintiff, defendant appeals.
Plaintiff alleges, in addition to the usual form as to the mortgage, that defendant George Wetherby purchased the mortgaged premises at a tax sale for the taxes of 1904, amounting to $5.08, and for those of 1907, amounting to .$5.40; that each of the defendants have or claim to have some right to, interest in, or lien upon, said mortgaged premises, but the same, if any exist, are subsequent in time and inferior in right to the lien of plaintiff’s said mortgage; that plaintiff tendered to Wetherby the sum of $20, the amount of the taxes, interest, and penalties, and deposited the same in court for that purpose.
Defendant Wetherby answered separately, affirmatively alleging that on the 26th of December, 1905, the sheriff of Multnomah County, Oregon, duly sold to this defendant the real estate described in plaintiff’s mortgage for delinquent taxes assessed thereon for the year 1904, amounting to $5.08, and issued a certificate therefor; that on the 29th day of December, 1908, said sheriff executed a tax deed of said real property to this defendant, which was duly recorded; that defendant is the owner in fee simple of the land, and prays that he be declared such owner, and entitled to the possession thereof.
Plaintiff demurred to the new matter in the answer, and upon the same being overruled replied, denying the issuance of any valid certificate of sale for such taxes, or
delivered the opinion of the court.
Upon this appeal defendant Wetherby contends that plaintiff was not authorized to make him a party to the suit. The tax deed, upon its face, shows defendant to be a grantee, and to have an interest in the mortgaged property.
Section 3108, B. & C. Comp., provides that:
“All taxes, which may hereafter be lawfully imposed or levied upon real property shall be and they are hereby declared to be a lien on such property from and including the day on which the warrant authorizing the collection of such taxes is issued until they should be paid, or until the title shall rest in the purchaser upon sale of such taxes. * *”
Plaintiff contends that the facts in defendant Wetherby’s answer were not sufficient to support any title of defendant to the land for the reason that said defendant did not allege that there was any tax levied upon the property for the year 1904, or any warrant issued for the collection thereof, or any return of sale by the sheriff; and that the separate answer of said defendant amounts to no more than a legal conclusion. Neither is there any allegation of ownership of the property at the time of the assessment. The facts usually continued in such certificate of sale and tax deed are not set out irr the answer.
The decree of the lower court is therefore affirmed.
Affirmed.
Lead Opinion
Opinion
Motion Denied.