Harriman v. Linn County

• Decision Date: 16 December 1953
• Citation: 200 Or. 1,264 P.2d 816
• Parties: HARRIMAN v. LINN COUNTY et al.
• Court: Oregon Supreme Court

Page 816

264 P.2d 816

200 Or. 1

HARRIMAN v. LINN COUNTY et al.

Supreme Court of Oregon.

Argued and Submitted Nov. 18, 1952.

Decided Dec. 16, 1953.

Sidney A. Milligan, Eugene, argued the cause for appellant. With him on the brief was Neil Brown, Eugene. On the supplemental brief, filed July 25, 1953, were Milligan & Brown, Eugene, and Weatherford & Thompson, Albany.

Courtney R. Johns, Dist. Atty. for Linn County, Albany, argued the cause and filed a brief for respondent, and also a supplemental brief July 10, 1953.

Lamar Tooze and Denton G. Burdick, Jr., Portland, argued the cause for respondent and cross-appellant. With them on the brief were Cake, Jaureguy & Tooze, Portland. On the supplemental brief, filed July 8, 1953, were Cake, Jaureguy & Hardy, Tooze, Kerr, Hill & Tooze, Denton G. Burdick, Jr., and Lamar Tooze, Jr., Portland.

Before BRAND, ¹ C. J., and HAY, ² ROSSMAN, LUSK, LATOURETTE ³ and WARNER, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant, W. E. Rhodes, and a cross-appeal by the plaintiff, Edward S. Harriman, from a decree which the circuit court entered quieting the title to a quarter section of timberland that lies in Linn county. The decree held that (1) the plaintiff Harriman (now cross-appellant and one of the two respondents) was the owner of an undivided half interest in the quarter section, subject to the curtesy right of Rhodes, and (2) Linn county (now a respondent, but which, together with Rhodes, was a defendant) was the owner of the other half.

Harriman claims that he is the owner in fee simple of the entire quarter section, subject to a curtesy interest in one half of it held by Rhodes. The defendant-respondent, Linn county, contends that it is the owner of an undivided half interest in the quarter section. Rhodes, the defendant-appellant, alleges that he is the owner in fee simple of an undivided half interest in the quarter section and that he is entitled to specific performance of a contract which he claims exists between the county and himself whereby, according to him, the county is bound to sell, and he to purchase, the other half interest which he and the county say it owns. Those, briefly stated, are the contentions of the parties.

We shall now take notice of a tax foreclosure proceeding, some transactions and a conveyance, in all of which the claims to title of the various parties to this suit have their seat.

It is conceded by the three parties to this appeal ((1) Harriman, plaintiff-respondent and cross-appellant, (2) Rhodes, defendant-appellant, and (3) Linn county, defendant-respondent) that prior to her death in 1940 one Zelma Carroll Rhodes was the record owner of an undivided half interest in the quarter section. It is also conceded by the parties that prior to December 10, 1942, a sister of Zelma Carroll Rhodes, by the name of Lillian Morey, was the owner of the other half interest. The defendant-appellant Rhodes was the husband of Zelma Carroll Rhodes, who upon her death left Rhodes as her widower, and a son, Jack Lannon, as sole heir.

August 28, 1942 when the taxes upon the property in question and upon some other tracts were delinquent and when the liens of the delinquent taxes were subject to foreclosure under the provisions of §§ 110-901 to 110-922, O.C.L.A., as amended, Linn county filed against all of the properties a foreclosure proceeding of the type permitted by § 110-905, O.C.L.A. December 10, 1942, the circuit court entered in that proceeding a foreclosure decree. The plaintiff Harriman charges that the decree was void as to the one-half interest owned by Lillian Morey. According to him, that individual was not named as a defendant in any of the following papers: (1) the application for a foreclosure decree, (2) the motion for an order of default, (3) the order of default, and (4) the foreclosure decree. The defendants Rhodes and Linn county deny the charge and insist that the foreclosure proceeding was valid. Harriman concedes that (2) Lillian Morey's name was properly entered as owner in the foreclosure list, § 110-902, O.C.L.A.; (b) a copy of the foreclosure list was made a part of the application for a foreclosure decree; (c) a certified copy of the foreclosure list was filed in the foreclosure suit when it was instituted; (d) the name Lillian Morey was entered in the published notice, § 110-904, O.C.L.A.; (e) the published notice was regularly published as required by law; (f) a copy of the foreclosure list was attached to and made a part of the foreclosure decree; and (g) all of those papers properly described the property.

The plaintiff Harriman admits that the foreclosure upon the undivided half interest owned by Mrs. Rhodes (Zelma Carroll Rhodes) was valid, but, as to the half interest owned by Lillian Morey, he presents the contentions which we just summarized. Based upon them, he claims that the demands of § 110-905, O.C.L.A., were not met and that the foreclosure decree was void as to her half interest. The pleading of Linn county alleges:

'* * * on the 28th day of August, 1942, a complaint was filed in the Circuit Court of the State of Oregon, for the County of Linn, wherein Linn County * * * was Plaintiff and * * * Lillian Morey were made Defendants * * *. That thereafter and on the 10th day of December, 1942, a decree * * * was signed by the judge presiding in said Court and cause that the Plaintiff have judgment against the Defendants named in said suit and cause, including * * * Lillian Morey; for the amount of the taxes * * *.'

The plaintiff's pleading denied the averments just quoted. Both of the defendants contend that the foreclosure proceeding and its decree are not subject to the attack made upon them by the plaintiff.

January 19, 1944, the sheriff of Linn county executed and delivered to the county a deed of the kind for which § 110-917 makes provision, and which described the quarter section in question. It recited as its basis the tax foreclosure suit which we have described.

Having taken notice briefly of the foreclosure proceeding and of the fact that Harriman concedes that it was valid as to the half interest previously owned by Mrs. Rhodes, we shall now describe the transactions which Harriman contends gave him ownership, subject to a curtesy interest, in the half interest once held by Mrs. Rhodes. It is first necessary to take heed of a statute enacted in 1943 and then of a transaction between the county on the one hand and Rhodes and Lannon upon the other. Harriman claims that the statute governed the transaction and that the latter was the precursor of his title.

Oregon Laws 1943, Ch. 214, in amending § 86-143, O.C.L.A., included the following:

'* * * the county court or board of county commissioners shall have power at any time, without the publication of the notice hereinbefore provided for, to sell and convey by deed signed by the county judge and commissioners or the board of county commissioners, to the record owner or to his assigns, any property acquired by any county for delinquent taxes for not less than the amount of taxes and interest accrued and charged against such property at the time of purchase by the county with interest thereon at the rate of 6 per cent per annum from the date of such purchase, * * *.'

December 8, 1944, the county court of Linn county, acting under the enactment just quoted, adopted a resolution which, referring to Rhodes and the aforementioned Lannon as 'successors and assigns' of Mrs. Rhodes, recited that those two were 'desirous of reacquiring said lands', that is, the undivided half interest previously owned by Mrs. Rhodes. We pause to explain that the appellant Rhodes concedes that no assignment was made to him, but the brief of his counsel says:

'The defendant Rhodes requested the Linn County Court to recognize him as the assignee of his deceased wife, Zelma Carroll Rhodes; this request was made as the widower of Zelma Carroll Rhodes and because she had requested him to get the land after she had suffered the stroke that ultimately caused her death.'

It is in that manner that the appellant Rhodes claims that he was an assignee within the contemplation of the statute which we quoted. We now return to the resolution which the county court adopted. Going on, it said:

'Whereas, it appears to this Court that it is to the best interest of Linn County, Oregon, to proceed to sell and convey said property to the said successors and assigns of said former owner, for not less than the amount of taxes and interest accrued and charged against such property at the time of the purchase by the county with interest thereon at the rate of six per cent per annum from the date of such purchase, which sum is as follows:

                Judgment,                   $61.77
                1942 taxes,                   5.70
                1942-43 taxes,               10.13
                1943-44 taxes,               10.70
                Recording fee,                1.20
                Acknowledgment on deed,        .50
                Cost of advertising,          1.50
                Estimate more than 1944-45
                 taxes,                      15.00
                

* * *

* * *

'Whereas, the said successors and assigns of said former owner are ready, willing and able to pay to Linn County, Oregon, the said sum of $106.50 in consideration for a conveyance from Linn County, Oregon, of said lands; and

'Whereas, Zelma Carroll Rhodes is deceased and left her son, Jack Lannon, who has by law succeeded to whatever right, title and interest the said Zelma Carroll Rhodes had in said real property at the time of her death, subject to a courtesy right of W. E. Rhodes, surviving spouse of the said Zelma Carroll Rhodes.

'Now therefore, it is hereby ordered that Linn County sell and convey said parcel of land to Jack Lannon, conveying and [sic] undivided one-half interest in the land above described, subject to the courtesy rights of W. E. Rhodes, the surving [sic] spouse of Zelma Carroll Rhodes, for the sum of $106.50 which sum is not less than the account of taxes and interest accrued and charged against said...