38 P. 2 | Or. | 1894
Opinion by
It is contended on the part of the defendant that, conceding the plaintiffs had a remedy against the city for its failure to collect the assessment, they having voluntarily purchased the property at its sale for the delinquent assessment, and having surrendered their warrants, are without remedy if the title they bargained for fails; while the plaintiffs’ counsel maintain that their clients were creditors of the city, that they purchased the property to satisfy their claim, and that, the proceedings having been declared void, and the issuance of deeds enjoined, their claim was not satisfied by such sale, and
The charter of Bast Portland not having any provision for the repayment of the purchase money, it follows that if the property had been purchased by a stranger to the proceedings he could have no remedy against the city upon failure of title; but the charter having provided that deeds should be executed to the purchasers if no redemption were made within three years from the date of sale, and the chief of police of Portland having been perpetually enjoined from executing deeds to the plaintiffs, their counsel contend that the execution and delivery of the deeds having been a part of the contract of purchase, they are entitled to a repayment of the purchase money upon such failure to complete the sale. In support of their contention they cite the case of Phillips v. City of Hudson, 31 N. J. L. 143, pi which it was held that so long as a contract for the sale of land is executory only the purchaser is entitled to
There is no sale in a legal sense until the title has passed (Settlemire v. Newsome, 10 Or. 446), and hence the purchase of the property in the case at bar was but an executory contract. The question then arises, could the plaintiffs, after they had paid the purchase price, rescind such a contract because of a failure of the title? In State v. Inhabitants of Piscataway, 43 N. J. L. 353, the court, in an action to annul a tax sale in order to prepare the way for a suit to recover the purchase money paid on the sale, said: “The rule of law applicable to such a case is that the municipality is under no obligation to refund the purchase money because the tax title fails; the purchaser is a volunteer and buys at his own risk,” thus showing that while the rule announced in Phillips v. City of Hudson, correctly stated the law as applied to private sales between vendor and vendee, its correctness may well be doubted when applied to sales of real property for delinquent assessments or taxes. In all cases where the rule of caveat emptor applies, the purchaser, from the very nature of the transaction, necessarily buys at his own risk, and cannot detain the purchase money on account of incumbrances or defects of title: Friedly v.
But the plaintiffs contend that the rule of eaveat emptor does not apply to their purchase, and that, having credited the amount of their bid upon their claim against the city, they can vacate the apparent satisfaction and proceed anew to enforce their demand. It cannot be conceded that the plaintiffs were creditors of the city. They had accepted warrants drawn against a special fund to be raised by an assessment of the property, and the city could become liable only by its failure to put the necessary machinery in motion to raise and collect the fund: Commercial National Bank v. Portland, 24 Or. 188 (41 Am. St. Rep. 854, 44 Am. and Eng. Corp. Cas. 486, 33 Pac. 532). How then can it be said that they were creditors of the city when its liability was only an implied one, and contingent upon its neglect to put the necessary machinery in motion ? It was supposed the city had a lien upon the property by virtue of its proceedings and upon its sale, and the plaintiffs, having become the purchasers, surrendered their warrants for the certificates of sale. They were not obliged to purchase the property, and, having done so, their purchase and the surrender of their warrants must be considered voluntary. They had no judgment against the city which was apparently satisfied by
Reversed.