Getchell v. Walker

• Decision Date: 04 June 1929
• Citation: 129 Or. 602,278 P. 93
• Parties: GETCHELL v. WALKER ET AL.
• Court: Oregon Supreme Court

278 P. 93

129 Or. 602

GETCHELL v. WALKER ET AL.

Supreme Court of Oregon

June 4, 1929

Department 2.

Appeal from Circuit Court, Jackson County; Walter H. Evans, Judge.

Suit by Delroy Getchell against A. W. Walker and others. Decree for plaintiff, and certain defendants appeal. Reversed and rendered.

This suit was instituted to foreclose a mortgage given by A. W and Katie Walker to plaintiff's assignor. Said mortgage was given June 11, 1912. The defendants Linnie Hanscam, A. C Walker, and Jackson county, Or., answered. The defense of defendant county is based upon its claim for delinquent taxes; and defendants Hanscam and A. C. Walker's defense is based on tax title derived from defendant county. The controversy gathers around the validity of application of personal property taxes to the real property described in the mortgage. Said personal property taxes were for 1917 and later years. Plaintiff had decree, the circuit court holding that the tax title claimed by Hanscam and A. C. Walker was void. The validity of the attempted foreclosure of the tax title is challenged. Defendants Linnie Hanscam, A. C. Walker and Jackson County have appealed. Several assignments of error are made, but all the alleged errors are based upon the lien claimed by said appellants upon the real property by virtue of the personal property taxes.

G. M Roberts, of Medford (Newton C. Chaney, Dist. Atty., of Medford, on the brief), for appellants.

E. E. Kelly, of Medford, for defendants A. W. Walker and Katie Walker.

Gus Newbury, of Medford, for respondent Getchell.

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

All that is written in this opinion must be read in the light of the attitude of both parties that the validity of the assessment and levy of the taxes is not disputed. It is conceded also that the attempted sale in the tax foreclosure proceeding of the real property described in the mortgage was void because the court did not acquire jurisdiction. The publication of the summons in the tax foreclosure proceeding, and in another suit involving the same summons, was held by the circuit court to be insufficient to confer jurisdiction. No appeal was taken from that decision. Both parties present the case here upon the theory that the court did not acquire jurisdiction to decree foreclosure and sale of the land for taxes.

The appealing defendants, however, urge very vehemently that the personal property tax, having been applied to the real property described in the mortgage before the instant foreclosure suit was instituted, constitutes said personal tax a lien upon said real property prior in time and superior in right to the lien of plaintiff's mortgage. The lien of the mortgage is not otherwise assailed. This suit was commenced by filing a complaint on the 5th day of June, 1924. The personal property taxes for 1917 were charged June 19, 1920, and for other years mentioned herein May 14, 1923, to the land described in the mortgage. The personal property tax was for the years 1917, 1919, 1920, 1921, 1922, and together with the real property tax aggregated with interest and penalties $2,739.47 at the date of the entry in the decree of the circuit court. Plaintiff tendered the amount of the taxes assessed against the real property, but refused to pay the taxes assessed against the personal property and applied to the real property.

"Whenever, after delinquency, in the opinion of the tax collector, it becomes necessary to charge the tax on personal property against real property in order that such personal property tax may be collected, such tax collector shall select for the purpose some particular tract or lots of real property owned by the person, * * * owing such personal property tax, and shall note upon the tax roll opposite such tract or lots the said tax on personal property, and said tax shall be a lien on such real property and shall be enforced in the same manner as other real estate tax liens." Or. Laws, § 4324.

This language is clear and plain. It requires no construction. In McKennon v. Warnick, 115 Or. 163, 166, 236 P. 1051, 1052, Mr. Justice Brown wrote in reference to the lien for taxes on real property for taxes assessed against personal property:

"* * * Under our statute, the lien is based upon the taxpayer's delinquency in the payment of his personal property tax, and dates from the time when the tax collector shall select a particular tract or lots of real property owned by the delinquent taxpayer and note upon the tax-roll opposite such tract the taxpayer's tax on personal property. At that time, and not until that time, shall such tax become a lien on the real property.

"A statutory tax lien is not divested by a transfer of the property to which it has attached. On the contrary such tax lien follows the property."

The taxes on personal property charged against defendant A. W. Walker became a lien against the real property described in plaintiff's mortgage on June 19, 1920, for the 1917 taxes and for the other years May 14, 1923, and continues until discharged. That lien was not discharged by the attempted sale of the property for taxes. The able attorney for plaintiff urges that the attempted sale for taxes was utterly void because the court had no jurisdiction to make the decree. Plaintiff cannot be heard now to say that void proceedings discharged the lien against the real property for the delinquent personal property taxes.

Plaintiff also strenuously argues that defendant A. W. Walker had plenty of personal property out of which the sheriff of Jackson county could have collected the personal property tax. The logical result of plaintiff's position in that behalf is that because the sheriff could have collected the personal property tax from the personal property, therefore defendant county is precluded from applying it upon the real property described in plaintiff's mortgage. That is to say, that, since the sheriff failed to do his plain duty to collect the taxes from the personal property against which it was levied, therefore the county must lose the tax, since the taxpayer is hopelessly insolvent. Such is not the law. The law clearly states that said delinquent property tax shall be applied to some real property selected for that purpose when, in the opinion of the tax collector, it is necessary so to do in order to collect the tax. The statute makes the tax collector the sole judge as to when it is necessary to charge the personal property tax against real property. When he makes the application the tax becomes a lien on such real property.

"All taxes which may hereafter be lawfully imposed, charged, or levied upon real or personal property, including taxes on personal property charged upon real property, as provided in the preceding section, shall be, and they are hereby, declared to be a lien upon such real and personal property, respectively. * * * Such liens shall have priority to and be fully paid and satisfied before any and every judgment, mortgage or other lien or claim whatsoever, except the lien for a tax for a subsequent year. * * *" Or. Laws, § 4325.

Under a similar enactment (a city charter) in New Jersey the Court of Errors and Appeals ruled to the same effect stating: "The lien claimed in behalf of the city is for water rates during the years 1874, 1875, 1876, 1877 1878, 1879, 1880, 1881, for water actually used by the owner of the land on the premises where he lived. If they were allowed to accumulate it was the fault of the...