20 Or. 86 | Or. | 1890
— The property in controversy in this suit is the S. E. ¿ of subdivision 26 of block C of Carter’s addition to the city of Portland. Plaintiff claims that the description of the property in the mortgage from Carter to Quinney as lots 8 and 4, block 26, Carter’s addition to the city of Portland, is a good and sufficient description of the property in dispute, and that when this mortgage was foreclosed and the property sold the purchaser obtained a title thereto, free from the liens of defendants, while defendants claim that the mortgage did not describe this property and, although they were parties to the foreclosure suit, their lien, as against this particular property, was not affected thereby. The plat of Carter’s addition, being referred to in the mortgage to Mrs. Quinney, becomes a part of the description contained therein, and is considered as incorporated in the mortgage itself. (2 Devi. Deeds, § 1020.) A reference to the plat is therefore necessary in order to determine the sufficiency of the description of the mortgaged property, and whether such description includes the property in dispute in this case. This plat shows a large block lying north of Montgomery street, 460 feet square, with streets all around it. It appears to be subdivided by two lines, one running east and west, and the other north and south, and intersecting each other
I think, from the evidence before us, we may safely assume that when Carter made the mortgage to Mrs. Quinney, he fully intended to describe therein that property, and that the description of the property in the mortgage was intended to do so; so that if we could disregard the language of the instrument and construe it according to the actual intention of the parties, whether expressed m the mortgage or not, we
Plaintiff insists that if we should be of the opinion that the property in controversy is not described in the Quinney mortgage, we ought, nevertheless, in this suit, to reform it so as to make it conform to the actual intention of the parties • but we are precluded from the consideration of that question by the fact that the complaint contains no allegation upon which such a decree could be based. It has been repeatedly held by this court that, in a suit “to reform a written instrument on the ground of mistake, the complaint must allege, distinctly, what the original understanding and agreement was, or point out with clearness and precision wherein there was a mistake, and that it did not arise from the gross negligence of the plaintiff, and the mistake must appear to have been mutual. (Hyland v. Hyland, 19 Or. 51; Lewis v. Lewis, 5 Or. 169; Stephens v. Murton, 6 Or. 193; Ramsey v. Loomis, Id. 367.) The complaint in this case contains no allegation, of a mistake in the mortgage, but is drawn up on the theory that there is no mistake, but an uncertain description. If we should undertake to reform this instrument under the present complaint, we would do so without any allegations to support the decree, and would be deciding a case not presented by the record. The defendants claim to be bona fide lien-holders, but have not so framed their answers as to avail themselves of this defense if the facts are with them. The reason assigned for this is that they, relying on the allega
It is also claimed that the deed of the chief of police, made to the city of Portland for this property under the sale for delinquent street assessments, having been recorded more than three years prior to levy of defendants’ execution, defendants are barred from enforcing their leins, by-virtue of the statute of limitations. This chum is based upon section 2840, p. 1314, 2 Hill’s Code, which reads as follows: “Any suit or proceeding for the recovery of land sold for taxes, except in cases where the taxes have been paid or the land redeemed, as provided by law, shall be commenced within three years from the time of recording the tax-deed of sale, and not thereafter.” The contention is that this section applies to land sold for delinquent street assessments as well as to that sold for general taxes. Assuming, for the purposes of this case, that the statute of limitations will run in favor of the holder under a tax-deed against a mere lien-holder, a question we do not undertake to decide, wé are of the opinion that section 2840 cannot be held to apply to sales made for delinquent street assessments. The language of the section is “land sold for taxes” and the section is a part of the general revenue system of the state. General taxes are a burden imposed upon property for the common good, and for the purpose of raising the ordinary revenues of a country, without regard to any special benefit to the owner, except such as may be anticipated from the general administration of the laws for individual protection and the general good. They are exactions from him for the purpose of either carrying on the general government or some subordinate department thereof, while special assessments, such as those made for street improvements, are founded upon the theory that a portion of the community is to be specially benefited in the enhancement of their property by reason of the contemplated expenditure of the public funds, and are therefore, in addition to the general levy, required to make special contributions for the intended im
Since there are important questions between the parties to this suit, as disclosed by this record, which cannot be litigated under the pleadings, we have concluded to dismiss the complaint without prejudice, neither party to recover costs on this appeal.