Watson v. Hagen

133 P. 66 | Or. | 1913

Me. Justice Burnett

delivered the opinion of the court.

It was conceded at the argument that the tax titles, under which the defendant claims, are void. The only contentions urged by the appellants are against the allowances made by the court for taxes, street improvements, municipal assessments, and betterments of the property while the defendant was in possession thereof, and permitting the defendant to remain in possession of the property.

1. It may well be doubted whether the cross-hill was cognizable in equity, for if the tax titles under which defendant claims were sufficient to vest him with the fee-simple title, as he alleged, he could have rested his defenses, upon them at law. Furthermore, if he had made permanent improvements upon the property while holding under color of title adversely to the plaintiffs, in good faith, he could also have litigated that in the action of ejectment under Section 330, L. O. L., which provides, in substance, that the plaintiff shall only be entitled to recover damages for withholding the property for the term of six years next preceding the commencement of the action; and that when permanent improvements have been made upon the property by the defendant they may be offset against such damages. The parties, however, have submitted themselves to the jurisdiction of the court of equity, and the case will be so determined.

2. A tax sale being a measure in invitum, it must be conducted strictly according to law. If there is any proceeding in which a purchaser is affected with the principle of caveat emptor, it is in a tax sale. He must take notice of all the jurisdictional defects in the proceeding, and as against them he cannot be said to be a purchaser in good faith. In the face of such errors, when one makes voluntary improvements on real property, he does so at his peril. Equity in such case will do no more than follow the law as laid down in Section 330, L. O. L., supra. Applied to this case, the improvements made of defendant’s own motion will be offset against the damages for withholding the same, which would be the rental value for six years next prior to the commencement of the action; but no further allowance can be made in that behalf. The defendant will be allowed the sum of $95 for taxes which he and his predecessors in interest have paid. The city of Portland has compelled him to pay on account of the Irvington District sewer, $72.60, for the improvements of East Seventh street, $39, and for sidewalk, $75. So far as disclosed by the record, these are public charges for which the realty would be liable in any event and in whomsoever the title vested. The total of these amounts is $281.60.

3. The court was in error in allowing the defendant to remain in possession of the property. The recovery of possession of realty is the very essence of the action of ejectment. As against one claiming under void muniments of title, possession and the fee go together. It was not necessary for the defendant to retain possession of the premises in order to preserve the lien which the court awarded to him. The widow and son, being tenants in common of the fee, are also entitled to the possession of the property.

The decree of the Circuit Court will be modified so as to give the plaintiffs William James Masson and Rachel Watson Masson the immediate possession of the property, the former as owner in fee subject to the dower of the latter, the whole to be charged with the payment to the defendant of $281.60, with interest thereon at the rate of 6 per cent per annum from the date of this decree, and directing a sale of the premises for the satisfaction thereof, unless the same shall be paid within 60 days from the entry of the mandate in the court below.

Modified: Rehearing Denied.