Blackburn v. Lewis

• Decision Date: 01 August 1904
• Citation: 45 Or. 422,77 P. 746
• Parties: BLACKBURN v. LEWIS. [*]
• Court: Oregon Supreme Court

77 P. 746

45 Or. 422

BLACKBURN v. LEWIS. ^[*]

Supreme Court of Oregon

August 1, 1904

Appeal from Circuit Court, Multnomah County; M.C. George, Judge.

Action by J.E. Blackburn against Leander Lewis. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

J.N. Pearcy and John T. McKee, for appellant.

Wm. M Gregory, for respondent.

WOLVERTON J.

This is a suit by plaintiff, claiming under a tax deed, to remove a cloud from title. The defendant claims under deed by regular conveyances from Ladru Royal and J.D. Hart, who, it is conceded, are the common source of title as between the parties. The defendant's title is regular, if the tax deed has not divested him of it, and the whole question turns upon the validity of such deed. It is based upon a sale for delinquent taxes for the year 1892, and an amendatory deed executed by W.A. Storey, as sheriff and tax collector of Multnomah county, Or., October 2, 1902. The former deed which was executed November 9, 1897, by William Frazier former sheriff and tax collector, having been declared inoperative and void by this court in the case of Lewis v. Blackburn, 42 Or. 114, 69 P. 1024, there is a question here touching the authority of the sheriff to execute an amendatory deed of the kind, under our statute; but we may pass that over, as the second is also void for another reason.

But before reaching that question, it is well to premise that the validity of a tax deed is to be tested by the statute in force when the sale was made, unless there is some expression denoting an intendment that the later act should operate retrospectively. Black, Tax Titles (2d Ed.) § 410; 2 Blackwell, Tax Titles (5th Ed.) § 795; Strode v. Washer, 17 Or. 50, 56, 16 P. 926; Woodman v. Clapp, 21 Wis. 350, 360; McCann v. Merriam, 11 Neb. 241, 9 N.W. 96; Baldwin v. Merriam, 16 Neb. 199, 20 N.W. 250; Capital State Bank v. Lewis, 64 Miss. 727, 2 So. 243; Conway v. Cable, 37 Ill. 82, 87 Am.Dec. 240. We do this to show that the effect of the deed in question, as to its conclusiveness as evidence, should be measured by the provisions of section 2823, Hill's Ann.Laws Or. 1892, as it stood at the time of the assessment and levy of the tax and the sale for its delinquency, and not in its amended form (B. & C. Comp. § 3127); there not appearing to be any sufficient legislative declaration attending the amendment indicating an intendment that the deed thereby provided for should apply to any former sales.

Now, as to the sufficiency of the tax deed to pass the title. Section 2735, Hill's Ann.Laws Or.1892, provided that unoccupied land, if the owner was unknown, should be assessed as such without inserting the name of the owner; and section 2775, Id., that unoccupied land liable to taxation, when the owner was unknown, should be described, and the value thereof set down in the assessment roll, in a part thereof separate from other assessments, in the same manner that lands of residents are required to be described, and the value thereof designated. These sections, when construed together, as they should be, simply mean that unoccupied land, if the owner be unknown, should be assessed as such--that is, as unoccupied land--and should be described and valued in a separate part of the assessment roll from other assessments. The words "as such" have relation to unoccupied land, not to unknown owner, and an assessment of land of that kind, where the owner was unknown, by a substantially different form, was unknown to the statute, and therefore unauthorized and void. If unoccupied land was found, and the owner known, it simply took the regular course, and was assessed in the name of the owner, so that no land of that description would escape assessment by construction. But it is argued that occupied land, where the owner is unknown, would escape assessment, unless assessable under the designation of "unknown owner." To this there is but one answer. The statute seems not to have made provision for the manner of assessment of that particular kind of land, and it must be regarded as an oversight of the Legislature, or else it assumed that all such land would have a known owner. But however that may be, the loss in revenue could not be of any...