Bradford v. Durham

• Decision Date: 25 May 1909
• Citation: 54 Or. 1,101 P. 897
• Parties: BRADFORD v. DURHAM et al.
• Court: Oregon Supreme Court

101 P. 897

54 Or. 1

BRADFORD v. DURHAM et al.

Supreme Court of Oregon

May 25, 1909

Appeal from Circuit Court, Douglas County; J.W. Hamilton, Judge.

Suit by W.H. Bradford against Petruella Durham and others. From a decree dismissing the suit, plaintiff appeals. Modified.

This is a suit to determine an adverse claim to real property. The complaint states that the plaintiff, W.H. Bradford, is the owner in fee and entitled to the possession of the S.W. 1/4 of the N.W. 1/4, the N.W. 1/4 of the S.W. 1/4, and the S. 1/2 of the S. 1/2 of section 36, in township 23 S., of range 3 W of the Willamette meridian, in Douglas county, which land is unimproved and not in the possession of any person, and that the defendants Petruella Durham, Wilson H. Stubbings, Samuel Handsaker, and Samuel Hunsaker claim some right, title, or interest in the premises adverse to the plaintiff, but that such assertion is without right. The prayer is that the defendants be required to set forth the nature of their alleged claim, and that it may be decreed invalid. The defendant Mrs. Durham and the defendant H.E. Noble, who, by order of the court, was made a party in place of Samuel Handsaker, severally filed answers denying the averments of the complaint, and alleging that each was the owner in fee simple of the real property specified, and entitled to the possession thereof. For a further defense Noble averred that plaintiff's alleged assertion of right to the premises was derived from a pretended sale and conveyance for the payment of delinquent taxes, and that such proceedings were void. The other defendants made default. After replies had placed in issue the allegation of new matter in the answers the cause was tried and the suit dismissed, but, as to all the other parties, it was determined that Noble was the owner in fee of the land. From this decree the plaintiff appeals.

J.A Buchanan and J.C. Veazie, for appellant.

J.M Gearin and O.P. Coshow, for respondents.

MOORE C.J. (after stating the facts as above).

The evidence shows that on September 24, 1894, the state of Oregon executed to the defendant Samuel Handsaker a deed to the land described in the complaint; that at that time he was the agent of Charles Hamlin, for whom he took the legal title in trust, and to whom he soon thereafter conveyed all his interest in the premises, but that the deed to Hamlin was never recorded; that the land was assessed for the year 1895 to Handsaker, but, as the taxes imposed had not been paid, the sheriff on August 3, 1901, sold the premises to Douglas county, which on January 28, 1903, received a tax deed therefor; that, pursuant to an order of the county court, the county judge on March 16, 1903, executed a deed of the land to Frank E. Alley, from whom the plaintiff herein acquired the alleged title by mesne conveyances. In the year 1900 all of section 36, except the S.W. 1/4 of the S.W. 1/4 thereof, in township 23 S., of range 3 W. of the Willamette meridian, was assessed to Priscilla Durham, but, the tax thereon not having been paid, the sheriff sold the land February 24, 1902, to Z.L. Dimmick, who assigned all his interest in the purchase to the plaintiff herein. The sheriff on January 30, 1905, executed to the plaintiff a deed of the premises last described, in which instrument it is asserted that the land "was duly assessed for the fiscal year 1900 to Petruella Durham." After this suit was commenced, Handsaker, for the expressed consideration of $100, signed and acknowledged a quitclaim deed purporting to convey all his interest in the premises described in the complaint to the defendant Noble. This deed was deposited with a bank in Portland, to be delivered upon the payment of the consideration, and, by paying to Handsaker's son the sum of $10, Noble secured possession of the deed and caused it to be recorded.

It will be seen that the plaintiff's title to the land is based upon two tax deeds, the validity of which depends upon a compliance with the terms of the statute in force when the proceedings were instituted and consummated. In the year 1895, when the land was assessed to Handsaker, and until February 27, 1901, when the law was repealed (Laws 1901, p 250), the sheriff, to whom was delivered the tax roll with a warrant attached, was required to make out a statement of the taxes remaining unpaid and to annex thereto an affidavit that he had not, upon diligent inquiry, been able to discover any goods or chattels belonging to the persons charged with such unpaid taxes whereon he could levy the same. Such a statement and affidavit was then to be filed with the county clerk. Hill's Ann.Laws 1892, § 2811. A copy of that part of the roll which should contain the sheriff's affidavit shows that he failed to subscribe his name to the written declaration, and neglected to take the required oath. Under the law then operative, the enforced collection of the sum annually imposed on land for the maintenance of the state, county, and municipal government was primarily by a levy on, and a sale of, personal property belonging to the person whose land was charged with the unpaid taxes. A resort to the real estate taxed to satisfy the demand could be had only when the required affidavit was annexed to the sheriff's return, upon the filing of which in the clerk's office a warrant could be attached to the delinquent roll, commanding and authorizing a sale of the land. A compliance with the requirement of the statute, in the...