46 P. 786 | Or. | 1896
after stating the facts as above reported, delivered the opinion of the court.
If, from the state of the pleadings, it appears that plaintiff is not entitled to any relief against the defendant, it must be admitted that the motion was properly allowed. Plaintiff’s title to the premises in controversy depends entirely upon a tax deed, a copy of which is appended to and made a part of the answer. But, in case of failure of title from that source, he claims the right to recover from defendant the amount of taxes standing delinquent against the premises at the date of such sale, and which constitutes the consideration for the deed. The amount is alleged to be $113.11.
But it is contended that if the land is divided into lots and blocks, then it is sufficient to give the number of the lot and block, whether the property assessed consists of an entire lot or less. If divided into lots and blocks, the acreage may be omitted (Code, § 2770, subd. 3); but, unless it is so divided “that it can be definitely described, it shall be described by giving the boundaries thereof”: Code, § 2773. We think the right interpretation of this latter section is that if land is so situated that it cannot be correctly described by legal subdivisions, or by lots and blocks, then it must be described by metes and bounds, or in such other manner as to make the description certain.
The land is described in the assessment roll and the deed as “Salem fraction of lot No. 2, in block No. 49.” The property sought to be recovered is an undivided one-half of a part only of said lot, or 22 feet and 7 inches by 165 feet thereof. Does the deed contain such a description as will operate to convey fhe interest sought to be recovered? The word fraction imports “a fragment; a separate portion; a disconnected part”: Century Dictionary. Black,
But the rule has its limitations, and it is not in every instance where the tax title fails that the land owner is required to tender the taxes paid by the purchaser before he is entitled to recover as against the tax deed. If the" tax itself were vicious, or such as the legislature could not lawfully impose upon the person or property, the tender could not be required, as it would result in a lawless exaction, which the state would be without power to compel either directly or indirectly: Cooley on Taxation, 551, 552; Hart v. Henderson, 17 Mich. 218; Sinclair v. Learned, 51 Mich. 335 (16 N. W. 672); Power v. Larabee, 3 N. Dak. 55 (49 N. W. 724, 44 Am. St. Rep. 577); Black on Tax Titles, § 438; West v. Cameron, 39 Kan. 738 (18
Other questions are raised by the record touching irregularities in the tax proceedings, sale, and deed, which it is claimed render the tax title void; but, under the view we have taken, they all become immaterial, and for this reason we have refrained from discussing them.
Affirmed.