Walton v. Moore

113 P. 58 | Or. | 1911

Lead Opinion

Mr. Justice McBride

delivered the opinion of the court.

1. The defendant urged, several objections to the validity of the tax proceedings, but the return of the sheriff in our opinion shows the sale to have been absolutely void. Section 24, Sess. Laws 1901, p. 250, under which statute the proceedings were had, among other things requires the sheriff to publish a notice “stating the time and place of the sale and a description of the several parcels of real property to be sold, the amount of taxes, interest to date of sale and penalties accrued against each tract.” The taxes on defendant’s land became delinquent April 4, 1904, and the sale took place January 14, 1905. The amount of interest due on said tax was $1.05. In the notice of sale it was stated to be $1.12.

The statute, requiring the amount of accrued interest to be stated in the notice, is mandatory, and a misstatement of it renders the sale void. Commenting on a similar mistake the supreme court of Massachusetts say:

“The advertisement did not state the amount of tax assessed on the land, but stated a wholly different amount, and, for all legal purposes, might as well have contained no statement whatever of the amount of the tax. To comply with the statute, the exact amount must be given. A deviation, however small, is fatal, because a rule of law cannot be made to fluctuate according to the degree or extent of its violation.” Alexander v. Pitts, 7 Cush. (Mass.) 503.

See Cooley, Taxation, 934, and Black, Tax Titles, § 207, where the above language is quoted with approval.

2. While the proceedings regarding the sale of land for taxes is in many respects analogous to sales of real property on execution, yet there is abundant reason for requiring a stricter compliance with statutory requirements in the former than in the latter class of cases. Sales on execution are usually the result of the voluntary contracts or acts of the debtor. There is an opportunity to realize something approaching the full value of the property sold and only so much need be sold as will satisfy the debt. While in tax sales the liability is involuntary and the delinquency usually the result of poverty or accident, and however great the value of the property, it cannot be sold for more than the amount of the tax. Where, as found by the court in the case at bar, a man under the mistaken idea that his property was not taxable until he had secured his patent from the government, has property worth hundreds and possibly thousands of dollars, sold for the paltry sum of $14, he certainly has the right to demand that every provision of the law intended for his benefit shall be strictly complied with before he is subjected to a forfeiture. The objection here sustained to the sale may seem technical, but, if so, it is a technicality that works out evenhanded equity.

[114 Pac. 105.]

3. The plaintiff gets back the money he paid for the land, with 20 per cent interest, and the taxes he has since paid, with 10 per cent interest, and the defendant recovers his land. Both parties ought to be satisfied, and, in view of this fact, neither party will recover costs.

The decree of the circuit court is affirmed.

Affirmed.

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Rehearing

Rehearing denied March 14, 1911.

On Petition for Rehearing.

Mr. Justice McBride

delivered the opinion of the court.

4. In the motion for rehearing we are asked to construe Section 32, p. 255, Laws 1901, which, so far as it relates to the matter under consideration, is as follows:

“In every action, suit or proceeding to set aside a sale of land for taxes, or to quiet the title against such sale, or to set aside the cloud thereof, or to recover the land sold, whether before or after the deed, the party claiming to be the owner as against the party claiming under the sale must tender in his first pleadings in such case, and pay into court at the time of filing the same, the amount of the purchase price for which such lands were sold, together with twenty per cent addition,” etc.

In the case at bar there was nothing in the complaint filed which indicated that plaintiff was relying upon a tax deed; nor was there anything in the original or first amended answer showing that defendant was seeking relief against a tax deed. Plaintiff claimed to be the owner in fee and in possession of the property; and defendant answered, setting up his title by patent from the United States. Upon the trial, when it became apparent that plaintiff was relying upon a tax deed, defendant by leave, and in fact at the suggestion, of the court filed a further answer, specifying certain- objections to the deed and made the tender required by law. The last amended answer when filed became defendant’s first pleading, and the preceding answers were functus officio and out of the case.

5. The course to be pursued in suits in equity, where the tax proceeding is left a matter of evidence, and not at issue in the pleadings, is not clear. In actions at law, where the plaintiff seeks to recover land sold from him for taxes, we have held that a plea in abatement was the proper method by which to raise the question of failure to tender the amount paid at the sale. In a suit in equity, where like conditions exist, we think the court, in its discretion, may allow the answer to be amended at any time so as to permit the tender. Of course, if there is anything in the circumstances attending defendant’s delay to tender the money sooner which indicates inexcusable neglect or bad faith, it is within the power of the court to refuse to permit the amended pleading to be filed, and to deny the defendant relief. The law has not made an inadvertent failure to comply with the statute a ground for absolute forfeiture of a defendant’s estate in the property, and we shall not do so by construction.

6. We are also asked to decide whether defendant was the real party in interest when he applied for leave to answer. It appeared from the testimony that, previous to asking leave to file his answer in this case, he made a quitclaim deed of the property in controversy to one Dysart, but that both he and Dysart testified that the deed was intended merely as a mortgage to obtain money to carry on this litigation, and this is not contradicted.

7. A deed intended as a mortgage will be treated as such so far as the courts can do so without injury to the rights of third parties. Both defendant and Dysart have estopped themselves by their affidavits filed in this case from claiming that the deed in question is other than a mortgage, and, if plaintiff had desired further assurance in this matter, he could have amended his complaint so as to make Dysart a party.

8. As to whether proof of publication of the notice of sale should have been filed with the sheriff’s return, we have expressed no opinion, for the reason that we find no evidence in the record sufficient to overcome the presumption that it was so filed. We think a denial of plaintiff’s title was sufficient to permit defendant to take advantage of the defect in the notice of sale pointed out in our original opinion, and that it was not necessary that it should be specifically pleaded in the answer.

Counsel suggests that the discrepancy between the actual amount of accrued interest and the amount erroneously stated in the notice of sale is so small that we should disregard it as unsubstantial. In other words, that a small violation of the law is no violation on the principle, “De minimis non curat lex.” But in proceedings in invitum, where it is proposed to take a man’s property for one thirty-fifth of its assessed value, the law does care for small things, and will not infrequently consider them to prevent an inequitable forfeiture. From the case of Shylock v. Antonio, reported at large by Shakespeare, down to the last volume of Oregon reports, the courts have held that statutes providing for a forfeiture shall be strictly'construed, and far be it from this court to say that a sum of money, coined by the government of the United States, which under certain circumstances it is a penitentiary offense to steal, and which is sufficient to furnish bread to the hungry, cheering drink to the thirsty, and to the miser the means of contributing to charity, shall be treated as unsubstantial in a case of this character.

The petition is denied.

Affirmed : Kehearing Denied.