Brentano v. Brentano

• Decision Date: 24 February 1902
• Citation: 67 P. 922,41 Or. 15
• Parties: BRENTANO v. BRENTANO.
• Court: Oregon Supreme Court

67 P. 922

41 Or. 15

BRENTANO v. BRENTANO.

Supreme Court of Oregon

February 24, 1902

Appeal from circuit court, Marion county; R.P. Boise, Judge.

Suit to cancel a tax deed by J.F.T.B. Brentano against C.F. Brentano. Decree for plaintiff, and defendant appeals. Affirmed.

This is a suit between brothers. Plaintiff, being the owner in fee and in possession of the W. 1/2 of the Jean Jeangras donation land claim, No. 79, situate in sections 14 and 23, township 4 S., range .3 W. of the Willamette meridian, conveyed, on February 13, 1896, the E. 2/3 thereof to the defendant and one R.L.M. Brentano. The whole of this tract, together with two certain lots in the town of St. Paul, were assessed to the plaintiff upon the assessment roll for Marion county Or., for the year 1895, but in separate parcels; the land being valued at $1,500, and the lots at $200. On March 26 1896, a warrant was issued to the sheriff of said county for the collection of taxes due upon said roll, and on December 11, 1896, another warrant was issued and attached to the delinquent list, requiring the sheriff to make the taxes remaining upon the said list by levy and sale of the property, as required by law. Under this warrant the sheriff levied upon and sold at public auction both land and lots en masse, to satisfy the whole of the taxes assessed against them, one J.K. Marley becoming the purchaser for the sum of $29.27, who received from the sheriff a certificate of sale. This certificate was assigned to P.H. Marley, and by him to defendant. In due course, and after the time for redemption had expired, the sheriff executed a tax deed to the defendant for the whole of said property so sold. On July 22, 1899, the plaintiff tendered to the defendant $19.50, in payment of one-third of the taxes assessed against the land and attendant costs and expenses and the whole of the taxes assessed against the lots. He subsequently brought this suit to cancel said tax deed as a cloud upon his title to the W 1/3 of the W. 1/2 of said donation land claim, the portion thereof remaining after the conveyance by him to defendant and R.L.M. Brentano as above noted, claiming that the deed is void for certain irregularities in the assessment and sale of the property for the taxes so levied, one of which is that the property was sold en masse by the sheriff, and not in separate parcels, as required by law. The plaintiff had a decree in the court below, and the defendant appeals.

B.F Bonham, John A. Jeffrey, and Carey F. Martin, for appellant.

W.M. Kaiser, for respondent.

WOLVERTON J. (after stating the facts).

It will be recalled that the land was assessed in one parcel and the lots in another, and it is admitted that they are situated 1 3/4 miles apart, so they cannot be considered, under any circumstances, as one parcel. The sheriff made the sale en masse, and the defendant purchased for a gross sum. This is shown by the officer's return. The deed is the result of the sale made in the manner indicated, and the question is whether it is void for irregularity. The contention in support of the deed is that it is the intention of the statute that sales of realty for taxes shall be made in separate parcels or otherwise, as it may appear likely to bring the highest price, within the discretion of the officer making the sale, and that the law has been pursued in the case at bar. The reasoning proceeds upon a collocation of Hill's Ann.Laws,§§ 2815, 2816, and 292. The first two sections provide that a warrant for the purpose of collecting delinquent taxes shall be deemed an execution against property, and shall have the force and effect thereof against any person, firm, or corporation upon whom such taxes are levied or charged on the roll, and shall be executed and returned in like manner, except as in chapter 17 otherwise provided; and that, if sufficient personal property be not found to satisfy the same, it must be levied upon any real property of the person, firm, or corporation, or sufficient thereof to satisfy the same, including fees of officers, etc. The last relates to the manner of sale under an execution and provides that when the sale is of real property, consisting of several known lots or parcels, they shall be sold separately or otherwise, as is likely to bring the highest price; hence it is concluded that the manner of sale, whether in parcels or en masse, is a matter resting entirely within the discretion of the sheriff. This has not been the practice, and when we come to take into consideration other sections of the statute relating to taxation it would seem that such was not the true intendment of the law. We call attention more especially to Hill's Ann.Laws, §§ 2770, 2814, 2823, 2825, ...