Borthwick v. Johnson

• Decision Date: 13 January 1914
• Citation: 68 Or. 563,137 P. 784
• Parties: BORTHWICK v. JOHNSON ET AL.
• Court: Oregon Supreme Court

137 P. 784

68 Or. 563

BORTHWICK v. JOHNSON ET AL.

Supreme Court of Oregon

January 13, 1914

In banc. Appeal from Circuit Court, Multnomah County; Henry E McGinn, Judge.

Suit by William L. Borthwick against J. E. Johnson and others. From a decree for defendant Johnson, plaintiff appeals. Reversed and rendered.

This is a suit to quiet title to lots 28 and 29, in block 23 Willamette addition to East Portland, now included within the corporate limits of the city of Portland. The complaint is in the usual form. All the defendants made default except Johnson, who answered, disclaiming any interest in lot 29 but setting up title in fee to lot 28. It was stipulated that the original title was in Andrew Roberts, who died in August 1898, that Sarah E. Malcolm was his daughter and sole heir, and that on April 11, 1911, Sarah E. Malcolm and her husband Phillip S. Malcolm quitclaimed all their right, title, and interest in lot 28 to plaintiff. Defendant Johnson claimed title under a deed made to William Mast by the sheriff of Multnomah county, bearing date of October 5, 1904, upon a sale of property theretofore purchased by the county for delinquent taxes, upon which the time for redemption had expired. The land was unoccupied and uninclosed until a few months before the commencement of this suit, when plaintiff inclosed it with a wire fence, which defendant tore down. Upon the trial the plaintiff offered in evidence the assessment rolls for Multnomah county for the years 1898, 1899, showing the property to have been assessed to Andrew Roberts.

H. H. Riddell, of Portland, for appellant. I. E. Richardson and Geo. D. Young, both of Portland, for respondent.

McBRIDE, C.J. (after stating the facts as above).

Unlike deeds made by the sheriff on sales of land for delinquent taxes. deeds made by that officer upon sales of land bid in by the county are not prima facie evidence of the regularity of the proceedings; and it is incumbent upon the party claiming under such a conveyance to show that every step necessary to vest a complete title in the county has been complied with. Ayers v. Lund, 49 Or. 303, 89 P. 806 124 Am. St. Rep. 1046; Dufur v. Healy, 56 Or. 49, 107 P. 692; Rafferty v. Davis, 54 Or. 77, 102 P. 305.

The defendant failed in this act at the very threshold. There is no evidence of any warrant ever having been issued by the county court for the sale of property for delinquent taxes nor of any...