Elliott v. Clement

• Decision Date: 02 May 1944
• Citation: 151 P.2d 739,149 P.2d 985,175 Or. 44
• Parties: ELLIOTT <I>v.</I> CLEMENT ET AL.
• Court: Oregon Supreme Court

175 Or. 44

149 P.2d 985

151 P.2d 739

ELLIOTTv.

CLEMENT ET AL.

Supreme Court of Oregon.

Argued at Pendleton May 2, 1944.

Reversed June 27, 1944.

Rehearing denied September 19, 1944.

Statutes

1. The decisions of Supreme Court of Washington after whose laws Oregon statute was patterned, if not binding, were at least highly persuasive in construing the statute.

Taxation

2. Statute prescribing method of giving notice in tax foreclosure proceeding, including service of summons by publication, must be strictly pursued.

Taxation

3. The 1919 amendment of tax foreclosure statute did not intend to dispense with necessity of notice of some kind, but its purpose was that in all foreclosures by county summons shall be served by publication and person appearing upon latest tax roll shall be the defendant, and proceedings shall be deemed in rem.

Statutes

4. All terms of a statute must be effectuated.

Constitutional law

5. Where property is taken under statute in derogation of common right, every requisite of statute having a semblance of benefit to owner must be complied with, or the proceeding will be ineffectual.

Taxation

6. Where summons in tax foreclosure required defendants "to appear within sixty days from and after the date of service upon you, exclusive of the first day of said service," instead of "within sixty days after the date of the first publication of the summons," as required by statute, sale of land under such process was void for failure to comply with statute and for indefiniteness as to time when defendants were required to appear.

Taxation

7. The statute requiring an action to determine validity of tax sale to be commenced within three years from date of sale does not apply to a void tax sale, since to construe the statute as barring right of true owner under such sale to claim his property would render the statute unconstitutional.

Taxation

8. A tax deed upon a void tax sale cannot draw to it the constructive possession of unoccupied land.

Taxation

9. The statute providing that tax deed is prima facie evidence of regularity of all antecedent proceedings does not prevent the court from inquiring into regularity of proceedings, and when it appears that court which entered decree of foreclosure had no jurisdiction, prima facie effect of deed disappears.

Taxation

10. A plaintiff seeking to quiet title to land sold for taxes must take notice of all omissions or irregularities which have taken place in proceedings under which he claims title.

Taxation

11. In action to quiet title to land sold for taxes, a company which pending the action entered into contract to purchase the land from landowner's heirs was not estopped from attacking validity of foreclosure decree and tax deeds because company appeared at the tax sale and bid on land involved and purchased one of tracts involved in foreclosure proceedings.

ON PETITION FOR REHEARING

Statutes

12. When one state adopts statute of another, it likewise adopts construction given to statute by the courts of former state and announced before adoption of statute, unless construction is not in harmony with spirit and policy of legislation and decisions of borrowing state.

Statutes

13. Supreme Court of Oregon was required to decline to follow the decisions of Washington Supreme Court to the effect that short statute of limitations may be invoked against tax foreclosure sale absolutely void for want of jurisdiction on ground that such decisions were opposed to weight of authority in Oregon, notwithstanding Oregon three-year statute of limitations was patterned after Washington statute and such decisions were announced previous to adoption of Oregon statute.

Taxation

14. The statute requiring an action to determine validity of tax sale to be commenced within three years from date of sale does not apply to a void tax sale, even if purchaser acquires possessions, since it is beyond power of legislature to transfer title of owner by lapse of time.

Taxation

15. Compliance with statutory requirements of notice to be given to landowners through published summons is essential to jurisdiction of court to entertain proceeding to foreclose tax lien.

Constitutional law

16. Notice of judicial proceeding to defendant and opportunity to be heard are of essence of due process with respect to defendant.

Taxation

17. Where landowner was not given proper notice through published summons of intended foreclosure of tax liens in judicial proceedings, sale of land was void for want of jurisdiction, and hence statute requiring action to determine validity of such sale to be commenced within three years from date of tax sale did not apply.

                  Necessity of actual possession to give title by adverse
                possession under invalid tax title, note, 22 A.L.R. 550. See
                also, 1 Am. Jur. 865 and 50 Am. Jur. 315
                  16 C.J.S., Constitutional Law, §§ 568, 602
                

Before BAILEY, Chief Justice, and BELT, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Grant County.

FRED W. WILSON, Judge.

Suit by H.R. Elliott against Elva Maud Clement and others to quiet title to land. From a decree the named defendant and others appeal.

REVERSED. REHEARING DENIED.

A.S. Cooley, of Pendleton, for appellants.

Earl B. Moore, of John Day, and Harold Banta, of Baker (Hallock, Donald & Banta, of Baker, on the brief), for respondent.

This case involves the validity of a tax title.

In 1935 Grant County commenced a general proceeding to foreclose the liens of certificates of delinquency issued on account of delinquent taxes for the year 1930 against a great many parcels of land. That suit was entitled "Grant County v. Edna Arnold et al.". A decree of foreclosure was entered October 21, 1935. A foreclosure sale was held on November 2, 1935, at which Grant County purchased all the real property involved in the suit, and subsequently, on March 22, 1941, the plaintiff purchased certain parcels thereof from the county, including the Northwest Quarter of Section 6 in Township 8 South of Range 33 East of the Willamette Meridian, the title to which is here in dispute.

Thereafter the plaintiff brought this suit to quiet title. The appealing defendants (hereinafter called the defendants), except Pilot Rock Lumber Company, a corporation, are the heirs of Nathan B. Parkman, who owned the land at the time of his death in 1913. In their answer they alleged a large number of defects in the foreclosure proceedings. After this suit was commenced Pilot Rock was made a party defendant, pursuant to stipulation of the other parties, apparently for the reason that during the pendency of the suit it had entered into a contract to purchase the land in controversy from the defendant heirs, contingent on the establishment of their title, and agreed to pay the costs and attorneys' fees incurred in the litigation. Pilot Rock, in its answer, alleged the same defects in the proceedings as did the other defendants.

In replies filed by the plaintiff to the separate answers it was alleged that Pilot Rock, by reason of the contract of purchase, was to all intents and purposes the real party in interest, that all the defendants were barred from attacking the validity of the decree and the deeds by the three-year statute of limitations, and that Pilot Rock was estopped to do so because it appeared at the sale in March, 1941, and bid on the land in controversy and purchased one of the tracts involved in the foreclosure proceedings.

The circuit court entered a decree for the plaintiff, from which the defendants have appealed.

LUSK, J.

Several alleged defects in the foreclosure proceedings entitled Grant County v. Edna Arnold et al. are urged by the defendants, but there is one which, in our judgment, is decisive of the case and, therefore, the only one that need be discussed.

By the published summons the defendants were required "to appear within sixty days from and after the date of service upon you, exclusive of the first day of said service, and defend this suit." The proceedings were governed by §§ 69-807 and 69-816, Oregon Code 1930. The latter section provides that "in all foreclosures by a county summons may be served or notice given exclusively by publication in one general notice", while § 69-807 prescribes that when service is made by publication the summons shall contain a direction "to appear within sixty days after the date of the first publication of the summons, exclusive of the date of said first publication, and defend the action or pay the amount due".

The published summons did not comply with the requirement of the statute.

The Supreme Court of Washington, after whose laws our statute is patterned (Hoskins v. Dwight, 69 Or. 558, 565, 139 P. 922; Getchell v. Walker, 129 Or. 602, 278 P. 93; see specially concurring opinion of Mr. Justice ROSSMAN in National Surety Corporation v. Smith, 168 Or. 265, 325, 114 P. (2d) 118, 123 P. (2d) 203), in several decisions rendered before this state's adoption of the statute, held "that a tax foreclosure summons which does not conform to existing law in the important feature of fixing the time within which a defendant shall appear is so fatally defective that it confers no jurisdiction to enter a judgment, and that a judgment entered thereon is void." Woodham v. Anderson, 32 Wash. 500, 73 P. 536 (1903). In that case the summons required the defendants to appear "within sixty days from the date of the first publication of the summons." The applicable statutes provided that the summons in a tax case should require the defendants to appear within sixty days after the service of the summons, exclusive of the day of service, and that service of publication should not be deemed complete until the expiration of the time required for publication. It was held that the court lacked jurisdiction and the judgment, therefore, was void. Thompson v. Robbins, 32 Wash. 149, 72 P. 1043 (1903); Smith v. White, 32 Wash. 414, 73 P. 480 (1903); and Young v. Droz, 38...