Alliance Trust Co. v. Multnomah County

• Decision Date: 14 January 1901
• Citation: 38 Or. 433,63 P. 498
• Parties: ALLIANCE TRUST CO., Limited, v. MULTNOMAH COUNTY et al.
• Court: Oregon Supreme Court

63 P. 498

38 Or. 433

ALLIANCE TRUST CO., Limited, v. MULTNOMAH COUNTY et al.

Supreme Court of Oregon

January 14, 1901

Appeal from circuit court, Multnomah county; John B. Cleland, Judge.

Suit by the Alliance Trust Company, Limited, against Multnomah county and William Frazier, as sheriff of Multnomah county. From an order sustaining a demurrer to the complaint and dismissing the suit, plaintiff appeals. Affirmed.

This suit was originally instituted to enjoin the sale of real property, and thereafter the complaint was amended so as to remove a cloud from the title thereto. It appears that the plaintiff, a private foreign corporation, loaned $45,200 in various sums to sundry persons, taking as security therefor mortgages on real property in Multnomah county, Or., which having been duly recorded therein, the assessor thereof, in 1890, 1891, and 1892, assessed said debts and mortgages as land to the plaintiff, but the taxes levied thereon for state, county, and school purposes, to wit, the sum of $937.84, including costs, have never been paid. Defaults having also been made in the payment of the sums so loaned plaintiff, by foreclosures, sales, confirmations, and sheriff's deeds, and by voluntary conveyances, has secured the legal title to the premises so mortgaged to it. In 1899 the defendant William Frazier, as sheriff of said county, levied on the plaintiff's interest in said lands as such mortgagee, and advertised the same for sale, to satisfy the taxes so levied thereon; whereupon this suit was instituted to enjoin said sale, the plaintiff alleging, in substance, that, prior to and at all times since the levy of said taxes, it had personal property in said county upon which Frazier's predecessors in office could have levied and collected said taxes under the original warrants attached to the tax rolls of the respective years, but that no levy was made thereon, and that the sheriff's returns indorsed upon the delinquent rolls of said county for the years 1890 and 1891 were false; that in 1892 no return whatever was made under the original warrant attached to the tax roll of that year, nor had any levy in pursuance thereof ever been made upon plaintiff's goods and chattels. The plaintiff, by leave of court, filed an amended complaint, alleging that after this suit was begun, Frazier, in pursuance of said levy and notice, sold said interest in the real property to said county for the amount of the taxes and costs, and issued to it a certificate of sale, whereby it claims to own said mortgage interest in the land to the extent thereof; but that by reason of the satisfaction of said mortgages, and the repeal of the mortgage tax law, said premises could not be legally sold under the warrant, and the pretended sales thereof conveyed no interest in said land, but cast a cloud on the title thereto, which it prays may be removed. A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of suit having been sustained, the suit was dismissed, and the plaintiff appeals.

Wm. D. Fenton, for appellant.

M.L Pipes and Alex. Bernstein, for respondents.

MOORE, J. (after stating the facts).

The contention of plaintiff's counsel that the release of the mortgages in question and...