Richards v. Mohr

143 P. 1102 | Or. | 1914

Mr. Justice Moore

delivered the opinion of the court.

1. A cloud on a title to real property is created by an attempted conveyance thereof by a stranger or an apparent lien imposed thereon in invitum, which, if valid, would impair the owner’s estate in the premises, but which grant or encumbrance can be shown by extrinsic evidence to be void or inapplicable to the estate in question. A suit to remove such cloud is an endeavor in a court of equity to have declared invalid a seemingly operative instrument, decree, judgment or other proceeding, the weakness of which cannot be disclosed from mere inspection, but recourse must be had to evidence aliunde, to render which admissible it is essential to set forth in the complaint the facts constituting such infirmity: Teal v. Collins, 9 Or. 89; O’Hara v. Parker, 27 Or. 156 (39 Pac. 1004); Shannon v. Portland, 38 Or. 382 (62 Pac. 50); Moores v. Clackamas County, 40 Or. 536 (67 Pac. 662); McLeod v. Lloyd, 43 Or. 260 (71 Pac. 795, 74 Pac. 491).

2. If this suit was designed to remove a cloud from the title to real property, the complaint is insufficient, because it does not set forth the particular muniments constituting the outstanding claim or encumbrance, or allege the infirmities which render such written evidence void: Shannon v. Portland, 38 Or. 382 (62 Pac. 50).

3. If, however, the suit was instituted to enjoin the enforcement of an alleged illegal tax, the complaint is insufficient for that purpose, for it is not averred when Chrisman was tendered $145.47, the amount of taxes which the plaintiff asserts was legally imposed against his real property. A clause of the statute in force when this suit was commenced reads:

‘ ‘ Taxes legally levied and charged in any year may be paid on or before the first Monday of April following, and if not so paid they shall become delinquent; # * and upon all delinquent taxes there shall be collected from the taxpayer of such taxes, for the benefit of the county, ten per centum as a penalty, and for the benefit of the county or other corporation which shall have an interest in any portion of such taxes interest at the rate of twelve per centum per annum on such taxes from the day on which they became delinquent until their payment * * Section 3682, L. O. L.

The alleged tender to the sheriff of the sum of $145.47 as the amount of taxes legally levied may not have been made until April 11, 1913, when this suit was instituted. There would then have accrued a penalty of 10 per cent of the taxes or $14.54, and also interest at the rate of 12 per cent per annum on $145.47 from April 7, 1913, the first Monday in that month, to the 11th day thereof, or 19 cents, making $14.73.

A failure to allege in the complaint when the tender was made, or to aver that a sufficient sum was offered to discharge the taxes, penalty and interest, rendered the initiatory pleading vulnerable to the demurrer interposed, in failing to sustain which and in granting the relief prayed for errors were committed.

It follows that the decree is reversed, and the cause remanded for further proceedings.

Reversed. Rehearing Denied.