279 P. 553 | Or. | 1929
Lead Opinion
This is a suit to remove a cloud upon plaintiff's title to certain lands described in the complaint; to have an assessment on said lands for the year 1919 declared void and of no effect; to have set aside and declared null and void what is alleged to be a pretended sheriff's deed on tax foreclosure sale to defendants, and for other equitable relief. Every proceeding in relation to the tax, and, afterwards up to the tax foreclosure and sale, it attacked and questioned, and, as necessary in these cases, the pleadings are very lengthy so that it is impracticable to condense them here. A brief statement of the principal points involved is all that we shall attempt.
At the time the tax for 1919 was levied and the assessment made, the plaintiff Charles R. Peterson was the owner of the tract in controversy, being the *292 north 1/2 of the north 1/2 of the southeast 1/4 of the northwest 1/4 of section 4, township 18, south range 47 east, of the Willamette meridian, containing 10 acres, situate in Malheur county. The description of the tract appears on the tax roll as follows: N2 N2, SE4 NW4, section 4, township 18, range 47, number acres cultivated land 10, value cultivated land $700, value of improvements $600. There are two other tracts of uncultivated and standing land assessed against plaintiff, and, being range land, it is unnecessary to describe it particularly, but it will be referred to in another connection.
Having failed to pay the taxes, the tract became delinquent and in due course on December 5, 1923, a certificate of delinquency was issued to Malheur county. The certificate described the three tracts as follows:
Name of person to whom assessed, C.R. Peterson; description of property assessed:
NE2 SE2, SE4 NW4, sec. or lot 4, twp. 18 Rawle 47. SE4 NW4, section 29, twp. 27, R. 37. Lot No. 2, and SW4 NE4, section 3, twp. 28 r. 37.
Taxes, $91.41, penalty, $4.56, interest, $37.37, total amount, tax penalty, interest and costs, $133.07.
On January 30, 1925, Malheur county filed its application in the circuit court to foreclose the tax certificate of delinquency issued by the tax collector (sheriff) of Malheur county for unpaid and delinquent taxes for the year 1919, and therein appears practically the same descriptions as the last foregoing and the same total amount of tax. The petition included the names of all delinquent numbering about 200 persons.
Thereafter an affidavit for publication of summons was made and entered on January 31 1924, and an *293 order for publication of summons entered January 31, 1924, which said order for publication of summons provided that service should be made upon the defendants by publication of summons for six consecutive weeks and seven publications in The Ontario Argus and that the date of the first publication should be February 7, 1924, and that the date of the last publication should be March 20, 1924; that summons was published as against the plaintiff in the same manner and form as described in the preceding paragraph; that thereafter and on the 27th day of June, 1924, the circuit court of Malheur county, Oregon, made and entered an order of default, findings of fact, conclusions of law and decree and did in said decree order and adjudge that the clerk of said court should make a certified copy of said decree as an order for the sale of said tracts of land included in said suit, and that said certified copy of said decree should be authority to the sheriff of Malheur county, Oregon, to sell said property described in said decree, and that such decree provided that the person offering to pay the amount due on each tract or lot for the least quantity thereof should be the purchaser of such quantity which should be taken from the east side of such tract or lot and the remainder thereof should be discharged from the lien and in determining such piece or parcel of such lot or tract a line should be drawn due north and south far enough west of the eastern point or tract to make the requisite quantity.
Thereafter the clerk issued an order, with a certified copy of the order of the court attached, directing the sheriff to make sale of the property. In the certified copy the figures "1918" are used instead of the *294 figures "1919" thus making it appear that the sale should be for delinquent certificates for 1918 instead of 1919.
The sheriff gave the customary notice, specifying that it was delinquent taxes of 1919, and there is no question as to the form of the notices, their contents, or posting of the same. The date of the sale was July 26, 1924, and seems to have been continued from day to day until the 30th day of August, 1924, when the property was sold to defendant David Graham for the amount of the taxes, penalties and costs. Andrew Graham, brother of defendant David Graham, acted as his agent at the bidding and there was no other bidder. The sale was more than six months after the first publication of summons and 47 days after the first publication of notice of sale. The amount bid was $494.78, being the taxes for 1919, and succeeding taxes, up to the time of sale and costs and statutory penalties. On the same day the sheriff executed a deed to Graham following the requirements of O.L., § 4355, in form.
MODIFIED. REHEARING DENIED. We have carefully examined the transcript and able briefs in this case, and are of the opinion that the assessment is valid; that the description of the property, although somewhat carelessly made, is valid; that the complaint on foreclosure is valid; and that the order of sale is apparently regular on its face, but we find an insuperable objection to the sale itself.
The sheriff was not armed with the necessary authority to sell the property for the taxes of 1919. *295 § 4354, O.L., after providing for the preliminary proceedings on foreclosure of tax certificates, contains, inter alia, the following provisions:
"The court shall give judgment and decree for such taxes, assessments, penalties, interest and costs, as shall appear to be due upon the several lots or tracts described in said summons and application for judgment and decree, and such judgment and decree shall be a several judgment against and lien upon each tract or lot, or part of a tract or lot, for each kind of tax or assessment included therein, including all penalties, interest and costs and such several judgments and decrees shall draw and bear interest at the same rate from the date of entry thereof as judgments or decrees for the payment of money under the laws of this state, and the court shall order and direct the clerk to make out and enter an order for the sale of such real property against which such judgment and decree is made, or vacate and set aside the certificate of delinquency or make such other order, judgment or decree as in law and equity may be just. Said order shall be signed by the judge, and a certified copy of such order, together with a list of the property therein ordered sold, shall be delivered to the sheriff of the county, and shall be full and sufficient authority for him to proceed to sell said property, * * *."
Now the certified copy, the original of which was signed by the judge, contains a direction to the sheriff to sell the property described for the taxes of 1918 instead of 1919 as it should have done. Giving full credit, notwithstanding the erasure of the figure "8" and the insertion of the figue "9" in the original, the fact remains that in the alleged copy, attached to the clerk's order, there was not only an entire omission to direct him to sell for the delinquencies of 1919 but a positive direction to sell for the delinquencies of 1918, which, as to this property, did not exist. *296
The order is the sheriff's writ of execution, and, though he disregarded the injunction of the writ and sold for the taxes of 1919, in spite of it, he could not be wiser than his writ and the sale was void. The sale is subsequent to the foreclosure decree and is not protected by it, and the sale conveyed no title. However, it has had the good effect of compelling Peterson to pay his delinquent taxes, and as the defendant has received all the money expended by him in paying plaintiff's delinquencies, he is not seriously harmed.
The decree will be modified so that upon the payment to defendants of the sum tendered by plaintiff, the sale will be set aside and declared void and of no effect, and as both parties are more or less in fault neither will recover costs here or in the court below.
MODIFIED. REHEARING DENIED.
BEAN, RAND and ROSSMAN, JJ., concur.
Addendum
To make our position clear, we will restate those provisions of the statute which apply here. Section 4354, O.L., after providing in detail the procedure leading up to and including the final order, all of which we hold to have been regular, further provides as follows:
"* * * The court shall order and direct the clerk to make out and enter an order for the sale of such real property against which such judgment and decree is made, or vacate and set aside the certificate of delinquency, or make such other order, judgment or decree as in law and equity may be just. Said order shall be signed by the judge, and a certified copy of such order, together with a list of the property therein ordered sold, shall be delivered to the sheriff of the county, and shall be full and sufficient authority for him to proceed to sell said property."
This certified copy of the order is the sheriff's warrant to sell the property for taxes. It is his only warrant to sell, and, without it, he totally lacks authority to make a sale. It is similar in some respects to an execution in an ordinary civil case, but it must be remembered that the procedure in tax sales is sui generis and complete in itself. The law has not invested a buyer at a tax sale, who perhaps bids in his neighbor's property at a mere fraction of its value, with those equities which are extended to one who *298 recovers a judgment upon a debt due him. It may well be that in such a case an execution creditor may have his execution amended as to slight errors, and particularly upon notice, but here there is not a slight error, but an error both of omission and commission. The copy of the order, as delivered to the sheriff, not only failed to direct him to sell for the delinquency of 1919 but affirmatively directed him to sell for a delinquency of 1918, which did not, so far as the evidence advises us, exist. Until corrected, the order had no more effect than a blank sheet of paper. Let us suppose that the sheriff, finding that the court had entered an order of sale on the journal, had proceeded without a certified copy to sell the property named in the order directing the sale, would any one say that this was only an irregularity? At once, one would say no, and the reason is clear. He derives his final authority to sell for taxes from his warrant, which is a certified copy of the order. The objection here is not to an irregularity in the sale but to the lack of a warrant to sell, which the law says the sheriff must have. If there is any flaw in this logic, counsel, who is an able lawyer, failed to point it out.
As before intimated, there is a wide distinction to be observed between a sale under an execution issued upon an ordinary judgment and a sale upon a warrant, or order of sale upon a foreclosure of a delinquent tax certificate. In civil actions, the defendant, if a resident of the county, must be personally served with summons. In a proceeding to foreclose a delinquent tax certificate, he may be, and in this case was, served only by publication. In a civil action, the sheriff is required to make a return of his execution to the court, from which it issued, showing what was done in *299 pursuance of his writ. In a sale under the act providing for foreclosure of delinquent certificates, no return is required, and the court is not required to confirm the sale; and a deed, made by a sheriff whose proceedings are thus unscrutinized by judicial examination, is made prima facie evidence of the regularity of the sheriff's proceedings, and a form of such deed is prescribed which does not recite in detail the various steps which the sheriff is required to take to make a valid sale. The proceeding is drastic in the extreme and, while the courts, in view of the necessity of promptly collecting the taxes necessary for carrying on the function of government, have reluctantly held that such statutes are not in violation of the "due process of law" required by the constitution, this court has always strictly construed them and has never enlarged their scope beyond their actual terms.
Failure to pay taxes when due usually arises from the oversight of the property owner, or his failure to be apprised that the tax is due, or from poverty and consequent inability to pay; and, while none of these conditions legally excuse the fact of nonpayment, none of these omissions are such crimes against the revenue as to justify the courts in dispensing with the strict requirements of the law as to the authority and procedure necessary to deprive him of his property often sold at a tithe of its value, and especially where he must first reimburse the purchaser at the tax sale and that at a large interest for his outlay.
This is not a case where a purchaser, relying on the validity of the proceedings, had entered upon the land and made substantial improvements. Even in such a case, we are not prepared to say that such circumstances would raise an additional equity in favor *300 of such purchaser, because that fact is not in this case. Nor are we prepared to say what the effect would have been, had the court ordered an amendent nunc pro tunc of the tax warrant or order of sale, or what the effect of such an order would be upon other and noncontested sales, nor as to the effect the three years limitation would have had upon other sales because this suit was commenced within three years after the sale. We do not apprehend however any serious loss to the county revenues by reason of anything intimated or decided in this case. What we mean to say is that, where the law prescribes a certain thing to be done in order to give the sheriff authority to make a sale, such thing and not something else must be done, and that the omission to do the thing necessary to give the sheriff such authority, whether it arises from the mistake of the court, or its clerk, or other officer, will defeat a tax sale if suit be brought within three years from the date of the sale as it was in the present instance. Beyond this it is unnecessary to go.
Counsel also calls attention to the fact, that, while the original complaint was filed within three years from the sale, no mention was made therein of the defect in the order of sale until the filing of an amended complaint on August 28, 1928, and claims that the suit as to this feature was barred by the three years limitation at the time the amendment was made, and that such amendment should not have been allowed.
The purpose of the suit was to remove a cloud on plaintiff's title, which he alleged was created by an invalid sale and the deed thereunder. The amendment was in line with the purpose of the complaint when the suit was begun, and there was no error in allowing the *301 amendment. It was within the discretion of the court with which we will not interfere. Counsel also calls attention to § 4372, O.L., which is as follows:
"Sale for Taxes Validated. All sales of land for taxes heretofore or hereafter made to counties or other public corporations are hereby declared legal and valid, and they shall pass good title to the lands assessed. No proceedings subsequent to a judgment or decree foreclosing a tax lien or liens shall be invalidated and no tax deed declared void or set aside for irregularities, omissions or defects except where the record owner of the land sold shall have been actually misled by such irregularities, omissions or defects to his injury."
We apprehend that this applies only to irregularities, omissions or defects not going to or affecting the authority of the sheriff to sell, and does not affect a case like the present one where there was an entire lack of authority in the warrant and order furnished the sheriff to sell for the taxes of 1919. Any other construction would leave the sheriff at liberty to sell without any order whatever.
It is not our custom and time does not usually permit us to hand down lengthy opinions upon rehearings, but in the present instance the petition has been presented in evident good faith and urged with much ability and plausibility, and is a matter of some public interest so that its consideration seems worthy of more than passing notice.
We are satisfied with the former holding and the petition for rehearing and the motion to recall the mandate will be denied.
REHEARING DENIED. MOTION TO RECALL MANDATE DENIED. *302