197 P. 289 | Or. | 1921
The facts appear to be as follows: That the taxes for the years ábove mentioned were regularly and legally assessed and were allowed to become delinquent; that on August 22, 1911, the sheriff of Douglas County duly issued a certificate of delinquency to Guy Gordon, in consideration of the sum of $9.10, being the amount then due for delinquent tax for 1909 and interest, penalties, and costs thereon; that Gordon sold and transferred the certificate to Whipple, who paid the taxes for the succeeding years; that, said property not being redeemed within three years, Whipple on February 11, 1915, filed in the Circuit Court for Douglas County his
This is a special proceeding in rem against the property, and, while it is much less than the old practice of sale of land for taxes without foreclosure, it resembles it in many respects. Previous to the passage of the act of 1907 (Laws 1907, Chap. 267, p. 453), the only notice that has been given to any delinquent taxpayer was that contained in the advertisement of the sale by the sheriff; and such is now the case in many of the states, perhaps a majority of them. A land owner or his mortgagee was presumed to know what property he owned and to know that it was liable to taxation. In Minnesota v. Central Trust Co., 94 Fed. 244 (36 C. C. A. 214), Judge Thayer remarks:
“It has been held frequently that a tax lawfully imposed by the state on its citizens is not an ordinary debt, but is an obligation which by its very nature should be regarded as paramount to all other demands against the taxpayer. * * These decisions also express a thought which is generally prevalent in the public mind that taxes levied by the state for its own support are founded upon a higher obligation than other demands. The fact has also been recognized from time immemorial that every sovereignty ought to be armed with the requisite power to enforce the collection of taxes without fail, and to compel the prompt payment of whatever imposts it sees fit to*215 levy for its own support. In view of that necessity it has been a common practice to provide summary remedies for enforcing such demands, which have been upheld by the courts whenever assailed, although it is quite probable that some of the remedies so provided could not have been sustained as affording due process of law, if the proceedings had related to the collection of purely private debts.”
‘ ‘ Such liens shall have priority to and be fully paid and satisfied before any and every judgment, mortgage or other lien or claim whatsoever, except the lien for a tax for a subsequent year.”
This statute was taken almost bodily from the Washington law, and it has there been held in repeated decisions that the language thus used not only makes a tax lien paramount to every mortgage or other lien upon the property, but that it is unnecessary to make such mortgage or lienholders parties to a proceeding to foreclose a tax certificate: Darnell Mining & Milling Co. v. Ruckles, 45 Wash. 180 (88 Pac. 101); Sherman v. Schomber, 43 Wash. 330 (86 Pac. 569); Rowland v. Eskeland, 40 Wash. 253 (82 Pac. 599); Spokane Falls & N. R. Co. v. Abitz, 38 Wash. 8 (80 Pac. 192).
“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, or so much of each tract or lot as may be necessary, for said sum set forth in said order, with interest and accruing costs, and to take such further steps in the matter*218 as are provided by law. Tbe sheriff shall, immediately after receiving the copy of the order, judgment, and decree of the court, proceed to sell said property as provided in this act. All sales shall be made on Saturday between the hours of 10 o’clock in the morning and 4 o’clock in the afternoon, and shall continue from day to day, Sundays excepted, during the same hours, until all lots or tracts are sold, after first having given notice of the time and place where such sale is to take place for ten days successively by posting notices thereof in three public places in such county, one of which shall be in office of the tax collector.”
No return of the sheriff is required, and his deed to the purchaser is made prima facie evidence that — •
“The real estate conveyed was subject to taxation at the time the same was assessed in the time and manner required by law.
“That the taxes or assessments were regularly levied, and were not paid at any time before the issuance of the deed.
“That the real estate conveyed had not been redeemed from the sale at the date of the deed.
“That the real estate was duly sold for taxes, as-sessments, penalties, and costs as stated in the deed.
“That the grantee in the deed was the purchaser or assignee of the purchaser.
“That the sale and all antecedent proceedings were conducted in the manner required by law.”
The manifest intent of the statute was to assimilate the proceedings to the summary methods of sale for taxes under the law previously existing, the provisions for foreclosure by a proceeding in the Circuit Court being merely an amelioration of the summary methods therein prescribed.
If delinquent taxes are to be collected at all, it is difficult to decree any effective method of doing so
We are of the opinion, therefore, that because this proceeding was begun in Douglas County before the boundary act was passed, the court of that county retained its jurisdiction to proceed to final decree and sale without regard to the change in boundary; and that the sale and conveyance thereunder by the sheriff of Douglas County vested the title to the disputed premises in defendant Whipple, unencumbered by plaintiff’s mortgage. This view renders unnecessary a discussion of the other points so ably presented by plaintiff’s counsel.
The decree is affirmed. Affirmed.