*1 651 Argued May rehearing 20; petition 2, reversed June denied October 1950 KEERINS BROTHERS v. MAUNEY et ux. (2d)

219 (2d) 222 P. *2 Q. Harry Hoy, of Portland, the cause for argued the briefs were appellants. On Hoy Prag, Portland.

Boy Kilpatrick, Canyon City, argued cause him on respondent. With the brief was D. Bobert Canyon City. Lytle, Justice,

Before Chief Lusk, Brand, Boss- Belt, man Justices. Latourette, BELT, J. co-partnership, consisting

Plaintiff Bonham Joseph H. Keerins and M. commenced this Keerins, August quiet suit 25, 1947, title to tract of county, Oregon, consisting alleg acres, of 160 ing that it had adverse years period prior thereof for of more than ten agree ap filing complaint. with time of the We brought pellants that the suit should have been constituting persons partnership and name of the since but Brothers”; not in the name of “Keerins ground complaint there was no demurrer on the to the legal capacity point plaintiff sue, has no referred to will was waived. “Keerins Brothers” opinion plaintiffs. this denying ownership in the The defendants answered, allegations in reference to *3 possession. defendants As a first affirmative defense January pur- charge plaintiffs 3, 1944, that when on property chased sale from Grant this at a sheriff’s county plain- an admission that the $156.46,it was only possession tiffs had held adverse of this affirma- since date of above sale. As second the the plaintiffs alleged tive that defense it is substance ought asserting prop- estopped title to the to be from erty by having on reason of based purchased county, thereby property as- from Grant suming present position their claim inconsistent with ownership. Mauney cross-complaint al-

As a the defendant G. property by leges that his title to the is clouded a tax county, Oregon, by deed executed the sheriff of Grant placed April 10, dated November of record 2,1935, by by a further deed executed the sheriff of county January purporting dated to 3, 1944, Grant convey property plaintiffs. Defendant real alleges deed to further that the sheriff’s by is “void and of no virtue whatever reason force or appears upon pro- of the of the that .it the face fact upon ceedings leading up sale which said deed to the tax ordering the sale of said real is based that the Court property, attempted foreclosure of a tax lien on an jurisdiction property, to fore- said never upon property close the said tax lien the said real published summons, reason of the fact that comply summons, in suit did not with the notice of said relating Oregon mandatory of the State of statutes summons, of said or notice of said matter at the time give published in it did not summons, was including A. Harter, therein, defendants named statutory property, time of said real then owner pay appear and defend the action or within which cross-complainant prays Defendant amount due.” proceeding declared to be that the tax foreclosure constituting a cloud his title void and be removed. reply denied the affirmative of the cross-complaint. alleged answer and

matter August hearing had on 9, 1948, the merits was A a decree was entered that the 8, 1949, and on June property in fee of the are the owners right, have no title or and that defendants entry same. Prior to the in and to the interest hearing merits, on the defendants after but decree seeking permission a motion 1948, filed on October *4 cross-complaint amended answer an to file hearing reopened pur- asking “for have the also por- enabling pose the defendants to introduce such judgment County tions of the roll in the case of Grant they, attorneys, v. Edna al., Arnold et or their shall necessary deem on the issue of whether or not the trial proceeding court in the said tax foreclosure ever ac- quired jurisdiction judgment to enter a or decree of against foreclosure A. J. Harter Mildred A. and/or Harter, husband and wife.” This motion was denied entirety. adjudicating in its From the decree plaintiffs property, are the owners in fee of the the de- appealed. have fendants sup

We are convinced that the evidence does not port allegations of adverse plaintiffs can not be based thereon. Linn (2d)

v. Rozelle, 177 Or. 245, 162 150; Reeves et al. v. (2d) Porta et 173 Or. 144 P. 493; note 170 controversy part large L.A. R. 838. The land in is of a many years tract of wild, mountainous land —for un unoccupied upon which there have never fenced— any buildings improvements. been or other land, The which lies about a mile west of the south fork of the Day Oregon, adapted only John river in eastern for grazing many years of livestock. for engaged have been in the livestock business and own graze. about 24,000 acres which livestock many years plaintiffs paid For 1927 —from 1935— controversy rent on this land in A. Harter, predecessor Mauney. in interest of the defendant G. The record discloses that in 1934 Harter leased it to years. period of five Neither predecessors paid defendants nor their have taxes the land since 1930. In 1935Grant instituted tax proceedings against large foreclosure number of including property tracts involved here land— purchaser in—and at the became tax sale. After *5 656 paid proceeding plaintiffs to

this the no rent Harter county. plaintiffs leased the land from Grant but grazing purposes to use the land for and in continued purchased county, paying 1944 it from Grant therefor delinquent representing an amount taxes thereon. nothing property manner There was in the which by anyone used the to was indicate claim ownership. years plaintiffs In recent constructed boundary oh the a fence western the which ranged, noteworthy their is within stock but it by parcels enclosure there were of land owned other persons. Mr. Keerins on J. M. cross examination testi- any ownership that there never claim of fied was by property plaintiffs prior pur- time to the it was by plaintiffs property in 1944. The rental of the chased possession. claim was inconsistent with the of adverse rely on tax deed Plaintiffs do not obtained county as a in 1944 basis of in title, and, from Grant they could not well do so for the reason that this deed, (2d) P. Clement, 44, 149 in court Elliott v. proceeding (2d) in P. held the tax foreclosure County covering al., v. Edna Arnold et this and Grant parcels many land, void on account of the other compliance publish summons with failure to party A. J. Harter was defendant above statute. jurisdiction tax not have If the court did suit. proceeding, Grant Court foreclosure purchaser and, therefore, the tax sale at as no title convey. Welch, Kaneaster v. could no title which it had (2d) 410. 547, 194 183 Or. et Jr. determined whether de to be

It remains Mauney the tax have is entitled to G. fendant is his It funda- a cloud on title. removed equity equity. mental who that he seeks must do Not withstanding plain county the deed from tiffs no has force effect in that the tax foreclosure proceeding upon which it it not fol void, is based does Mauney low that the defendant can the relief obtain sought for reason that has he failed to tender to the paid amount them to the delinquent cov paid by er amounts them for taxes *6 question subsequent purchase, taxes on together the land to its interest with thereon. Hibernia & Commercial Savings 413, Bank v. 121 255 P. McArthur et Or. Bagley 466; Bloch, v. Section 425. 110-920, L. O. C. as it is material A., herein, so far provides: “* * * proceed- every In action, such suit or ing any person claiming prop- to the the be owner of erty, against any county, person holding as the or county, pay title from the shall into court with the pleading charged against prop- first the amount erty judgment and decree of to- foreclosure, gether per at with interest thereon the rate of 6 cent

per judgment annum from the such date of and de- filing pleading.” cree of to the date such Pomeroy, Equity Jurisprudence (5th ed.) 2In § it 393a, is said:

“Equitable quiet relief to remove a cloud, title, deed, restrain tificate, against of a tax cancel tax cer- issuance bill, title, aside a tax or to determine set purchaser sale, at an invalid tax will not given general pays owner unless the offers justly purchaser.” pay due to what plaintiffs objected At the commencement of the trail any of evidence to introduction the defendants challenging ground the tax title that defendants had made no to reimburse the tender for the objection paid taxes. The amount for Defendants, of in view should have been sustained. position assert court are in a that the record, not refusing right file discretion in them abused its alleged. pleading tender is an wherein amended and the court is reversed The decree the circuit prejudice as to the suit dismissed without defendants. are entitled to costs and disbursements. Defendants Rehearing

On for Petition Lytle Roy Kilpatrick, Canyon D. Robert petition. City, for Prag,

Hoy Portland, contra. & Justice, Chief Before Lusk, and Brand, Belt,* Justices. Latourette, Rossman, denied. Petition

BRAND, By petition rehearing ask us opinion portion of our former where- to reconsider support not the alle- evidence does in we held Upon gations possession. reexamination *7 opinion upon former adhere our evidence we of the assignments except disposes of all This that issue. reads follows: third which concluding plain- in “The court erred that the rely from on the tax deed obtained do not tiffs stating they not could Grant v. Clement, in Elliott of the decision because only v. because Elliott Clement determined 44, land involved that case. There as to the the issues showing jurisdiction in this record that was is no prede- Harter, over defendant’s obtained not cessor.”

[*] Died August 6, 1950. Although substantially based the entire case was by posses- plaintiffs’ claim of title they sion, it is did also assert nevertheless true that by they quieting were entitled to a decree they virtue of fact that were sheriff’s valid on and that such deed deed, its face, prima Among the constituted facie of title. evidence exhibits in the In the first, case there are deeds. two county county the the sheriff of Grant deeds to the pending involved in the It is dated Novem- case. “public ber 1935. deed The recites that there was day of sale real estate held on the 2nd of November pursuant judgment D.A. tax 1935”, a real estate day and decree made and entered on the 21st of Octo- ber, 1935. It also recites that the land sold was for- merly by owned A. J. Harter. The second deed, only by plaintiff, one introduced is dated the day January, county 3rd of recites that the acquired pieces property by of Grant certain of means tax sales. is There no identification in the deed grantor tax sale involved. The is the sheriff of county grantees and the are Keerins Brothers, plaintiffs. support two deeds are the sole plaintiffs’ they claim that a tax title to premises question. When the first deed was given county, § to the O. C. 69-828 was in effect. It

provided, prima in substance, that sheriffs’ deeds are repealed by facie evidence of title. It was laws Chapter 485. Plaintiffs also claim that the prima them from facie evidence of title § L. A., 2-407, reason C. which O. establishes a presumption duty disputable reg- that official has been ularly stipulated performed. was It that A. J. Harter wife were the owners of the land in at the

time of institution suit tax foreclosure entitled County v. that the lands which ‘‘Grant are Arnold”; pending involved in the in suit were included that fore- named suit; closure that Harter was a defendant the foreclosure suit that the foreclosure suit “purported against lien to foreclose the tax plaintiffs’ in this case.” The deed involved is valid jurisdiction only if the court had circuit case County v. Arnold to decree the foreclosure of against pending of Harter. In taxes lands case copy Mauney introduced a certified the defendant original case summons of Grant v. shows its face that it Arnold. The was summons fatally In v. Elliott Clement et defective. 739, 151 P. 2d this court 985, 149 P. 2d considered County v. in Grant Arnold held that summons (cid:127) jurisdiction to enter court was without a decree pursuant to the decree was void. that the sale plaintiffs’

Assuming constituted .the prima is, our title, evidence of whether facie prima been evidence has overcome. The facie suit such proceeding rem. In taxes was Elliott to foreclose .purpose supra, said that this court Clement, v. legislature was: clearly in all point foreclosures out “to by publication, shall be served the summons appearing person on the latest tax-roll shall and the proceedings and the shall be defendant, in rem.” deemed every assume that the reason to summons

There given exclusively by publi- notice and the served was provided Oregon general as was notice in one cation § that notice was of no Since effect, 69-816. Code infer that Harter received' no notice. reasonable it is *9 parties stipulated from The a chain of title conveyances by mesne to A. Harter the United States Mauney. wife, and defendant from them the they proving that had the burden of subsequent through title a tax foreclosure conveyances time of trial to themselves. theAt they proceedings pending based case, knew that published fore on summons were void that the deprived of his not Harter closure decree could have strange procedure and unusual title unless some provision, made for which the statute no personal Harter, on had notice officials served voluntarily general appearance Harter had entered prima in answer to void summons. The facie effect proceedings based of a sheriff’s in tax foreclosure opinion, publication in our over was, of summons good appeared had record it that Harter come when publication that the from the States and title United void. If the of summons in the tax foreclosure was show that A. J. Harter entered desired to appearance general a void summons, answer they have intro if such had been the could fact, showing general appearance. duced the record such peculiar of this we hold that case, facts Under solely relying plaintiffs, deed from the proof of to sustain the burden of have .failed sheriff, through petition for rehear tax foreclosure. The ing denied.