Ayers v. Lund

• Court: Oregon Supreme Court
• Citation: Ayers v. Lund, 49 Or. 303, 89 P. 806 (Or. 1907)
• Decision Date: 23 April 1907
• Parties: AYERS et al. v. LUND.
• Writing for the Court: EAKIN, J. (after stating the facts).

89 P. 806

49 Or. 303

AYERS et al. v. LUND.

Supreme Court of Oregon

April 23, 1907

Appeal from Circuit Court, Josephine County; H.K. Hanna, Judge.

Action by S.N. Ayers and others against O.O. Lund. From a judgment for plaintiffs, defendant appeals. Affirmed.

Elizabeth Ayers, through whom the plaintiffs claim, was the owner of the property in question during the year 1898, and it was assessed to her for taxation for that year. The answer as a defense alleges that, the tax thereon being delinquent, the sheriff on October 23, 1899, sold the same to Josephine county by authority of the delinquent tax warrant for the amount of said taxes, $8.35, and thereafter, on July 14 1902, sold to defendant the title thus acquired by the county for the sum of $16.35, pursuant to the terms of sections 3133, 3136, B. & C. Comp., and on August 8, 1902, executed to him a deed therefor under the provisions of section 3135 Id. Plaintiffs by their reply question the validity of defendant's title, for the reason that the sheriff in making said tax sale to the county made no levy on the property under his warrant, and did not advertise the same for sale, as provided by law, and made no return of said sale upon his tax warrant, and alleges tender of $50 to the defendant prior to the suit to cover the amount of his bid and subsequent taxes paid, and that they tender the same into court with the reply. At the trial no proof was offered of the tender or deposit of the tender with the clerk, and for want thereof findings were made and decree rendered by the court in favor of defendant. On the same day the plaintiffs filed a motion, based upon affidavit, to vacate the decree and reopen the case and permit them to prove the tender and to deposit the money in court, which was granted by the court, and thereafter, upon the further findings, decree was rendered for plaintiffs.

H.D Norton, for appellant.

R.G Smith, for respondents.

EAKIN J. (after stating the facts).

Defendant assigns as error the act of the court in vacating the decree and permitting further testimony to be offered. The proceedings of the court remain in the breast of the judge until the close of the term, during which time the court has inherent right to correct, modify, or vacate its decree, and its action in such a case will not be disturbed on appeal except for an abuse of discretion, which does not appear here. Deering v. Quivey, 26 Or. 557, 38 P. 710.

It is also claimed that the court erred in finding that the tax sale is void for want of a levy upon the property under the warrant. By the terms of the statute in force at the time of the sale (sections 2814, 2816, Hill's Ann.Laws 1892) the sheriff was required, under his warrant, when resort was had to the real estate, to make a levy upon the property before advertising it for sale, so that the levy is part of the procedure in the execution of the warrant. But it is claimed by the defendant that the omission of the levy is cured by the terms of section 3135, B. & C. Comp. It is within the power of the Legislature to cure by retroactive enactment such omissions or irregularities in proceedings of public officers as might in the first instance have been dispensed with by it. The levy is an act by the officer which fixes the lien upon the property and determines the date from which the lien will attach, but it is not a jurisdictional or essential act necessary to the validity of the sale. In case the lien is not otherwise created, a sale without a levy transfers only the title of the tax debtor at the time of the sale (2 Freeman on Executions [3d Ed.] § 280), and, unless levy is made necessary by statute, the sale is valid without it, and, where it is required by statute, its omission by the sheriff may be cured by subsequent legislative act. Stanley v. Smith, 15 Or. 505, 510, 16 P. 174. And in this case the absence of the levy was cured by section 3135, B. & C. Comp.

Defendant also claims that the burden is upon the plaintiffs to establish the invalidity of the tax sale. By legislative act of 1901 (Gen.Laws 1901, p. 72; section 3131-3136, inclusive, B. & C. Comp.) provision is made for the disposition of property purchased by the county at tax sales. Section 3131, Id., provides that, "if no redemption shall be made, title to the lands so sold shall vest in the county *** without issuance of deed or other formality." By sections 3133, 3136, Id., the sheriff is authorized on the first Monday in July of each ear to sell to the highest bidder the lands theretofore bid in by the county for taxes, and to which it shall have acquired title, as provided in section 3131, Id. Section 3135, Id., is curative of the irregularities occurring in tax proceedings resulting in the county's title, and also provides for a deed to the purchaser at the sale of the county's title, under section 3133, Id., and makes such deed "conclusive evidence of the regularity and existence of all proceedings necessary to pass title to the lands therein conveyed, and of title in the grantee, except" as to certain matters relating to the assessment, previous payment of the tax, etc.

Defendant relies upon his deed and its effect under section 3135, B. &amp C. Comp., as casting the burden upon the plaintiffs to show the invalidity of the tax sale. The well-established rule, when not modified by statute, is that the burden of proof is on the holder of the tax title to maintain his title by affirmatively showing that the provisions of the law have been complied with. Strode v. Washer, 17 Or. 57, 16 P. 926; Bays v. Trulson, 25 Or. 114, 35 P. 26; Brentano v. Brentano, 41 Or. 19, 67 P. 922; Marx v. Hanthorn, 148 U.S. 172, 180, 13 Sup.Ct. 508, 37 L.Ed. 410. By section 3127, B. & C. Comp., in case of a tax sale to a private purchaser, the deed is made prima facie...