Meier v. Kelly

| Or. | Nov 17, 1890

Bean, J.

— 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 in the center of the block, forming four subdivisions or smaller blocks, each 230 feet square. In each of these subdivisions are the numbers 23, 24, 25 and 26, respectively, commencing at the northwest corner of the block. This block C is also subdivided by three parallel lines running east and west, which, by their intersection with the north and south lines, make eight smaller subdivisions or lots in the block, and are numbered consecutively from*l to 8, inclusive, commencing at the northeast corner of the block, thus making two of these smaller subdivisions or lots in each of the larger subdivisions, the two in subdivision 26 being numbered 5 and 6. This plat also shows a number of blocks lying south of Montgomery street, each being designated by numbers. The greater portion of the numbered blocks are 200 feet square. One of these blocks, No. 41, is subdivided into eight equal parts, and these parts are numbered consecutively from 1 to 8 inclusive, commencing at the northeast corner of the block. In the center of this block are written the words, “Order of numbering lots.” The contention of plaintiff is that subdivision 26 of block G should be deemed one of the blocks of Carter’s addition, and that the order of numbering blocks, as indicated in block 41, should be applied to this block, thus making the description of the property in dispute lots 3 and 4 of block 26 of Carter’s addition to the city of Portland, the same as in the mortgage from Carter to Quinney. It appears from the evidence that there is no other block 26 in Carter’s addition, except this subdivision of block C, and that, at the time of the mortgage, Garter owned no other property o* record in block G except the property in dispute in this case

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 would have no difficulty with this branch of the case. But in our construction of the mortgage we are confined to the intention of the parties as gathered from its contents. As a matter of construction we cannot change or vary the description actually contained in the mortgage, although it may be plain that it is not the description intended to be inserted therein. Where the terms used in the description contained in a deed or mortgage are clear and intelligible, the court will put a construction on the terms, and parol evidence is not admissible to control the legal effect of such description. (Waterman v. Johnson, 13 Pick. 261; Bond v. Fay, 12 Allen 86); but when the description is uncertain and ambiguous, parol evidence will be admissible to fit the description to the thing described, but not to add to or change the words of the description. (Radford v. Edwards, 88 N.C. 347" court="N.C." date_filed="1883-02-05" href="https://app.midpage.ai/document/radford-v--edwards-3655386?utm_source=webapp" opinion_id="3655386">88 N. C. 347.) In this case we find no uncertainty or ambiguity in the description, but it is definite and certain, and in every way clear and intelligible; and therefore there is no room for the admission of parol evidence. Nor can we agree with respondents’ counsel in the construction of the plat. There are two classes of blocks shown in this plat, — one numérica^ and the other lettered; and there is indicated on the plat a key for the numbering of the lots in the numerical blocks, and .it is sought to apply this key to the subdivisions of the lettered blocks. It would seem from the plat that after platting that portion of the addition south of Montgomery street into numerical blocks of a given size, and indicating on block 41 the manner in which these blocks should be divided into lots, the parties making the plat, for reasons sufficient to themselves, laid off and platted another and much larger block south of Montgomery street and designated it by the letter C. They also took the precaution, it seems to us, in order to avoid any question as to the division of the block, to indicate on the plat itself the manner in which it should be done. This block is completely divided and subdivided, and there can be no reason, as we can conceive, why the order of numbering lots as indicated in block 41 should be applied to it, nor could it be done without doing violence to the expressed intention of the parties as indicated on the plat itself, and besides, such a division would be impracticable, to say the least. If the order of numbering lots as indicated in block 41 should be applied to each subdivision of block C, there would be eight lots in the center of the block, abutting on neither street nor alley, and with no public way of ingress or egress, a condition evidently never contemplated by the parties making the plat. This is a case where the parties simply made a mistake in the description in the mortgage, that can only be corrected in a proper proceeding.

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" court="Or." date_filed="1890-03-31" href="https://app.midpage.ai/document/hyland-v-hyland-6895590?utm_source=webapp" opinion_id="6895590">19 Or. 51; Lewis v. Lewis, 5 Or. 169" court="Or." date_filed="1874-08-15" href="https://app.midpage.ai/document/lewis-v-lewis-6893502?utm_source=webapp" opinion_id="6893502">5 Or. 169; Stephens v. Murton, 6 Or. 193" court="Or." date_filed="1876-12-15" href="https://app.midpage.ai/document/stephens-v-murton-6893690?utm_source=webapp" opinion_id="6893690">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 allegations of the complaint, were not called upon to do so, as the complaint does not indicate a suit to reform this mortgage.

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 improvements. In theory, at least, the property assessed is supposed to be benefited in an amount corresponding to the assessment, by its increased value on account of the improvement. (Cemetery v. City of Buffalo, 46 N.Y. 506" court="NY" date_filed="1871-11-28" href="https://app.midpage.ai/document/buffalo-city-cemetery-v--city-of-buffalo-3607727?utm_source=webapp" opinion_id="3607727">46 N. Y. 506; Sharp v. Speir, 4 Hill. 76; King v. City of Portland, 2 Or. 146" court="Or." date_filed="1865-09-15" href="https://app.midpage.ai/document/king-v-city-of-portland-6893143?utm_source=webapp" opinion_id="6893143">2 Or. 146.) There must be special legislative authority for imposing these special assessments, and land cannot be sold therefor without specific legislation for the purpose. The • ordinary authority to sell land for taxes is not applicable to an assessment for street improvements, nor can the statute of limitations provided for the holder under a general tax-deed be considered applicable to such sales. (Cooley, Tax’n, 469; Blackw. Tax-Titles, § 615.)

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.