Hoskins v. Dwight

• Decision Date: 24 March 1914
• Citation: 139 P. 922,69 Or. 558
• Parties: HOSKINS v. DWIGHT.
• Court: Oregon Supreme Court

139 P. 922

69 Or. 558

HOSKINS v. DWIGHT.

Supreme Court of Oregon

March 24, 1914

Department 2.

Appeal from Circuit Court, Yamhill County; Percy R. Kelly, Judge.

Suit by Hervey Hoskins against W. G. Dwight. From a decree for defendant, plaintiff appeals. Affirmed.

This is a suit by Hervey Hoskins against W. G. Dwight to determine an adverse interest in real property. The plaintiff asserts title to the N.E. 1/4, section 6, in township 3 S. of range 5 W. of the Willamette meridian in Yamhill county, Or., by a sheriff's deed executed to him pursuant to a sale of the premises under a decree of the circuit court of the state of Oregon for that county, foreclosing an alleged lien for taxes undertaken to be imposed upon such land during the time it was owned by Alson G. Byers. The defendant claims title to the same premises by a deed executed to him by Byers subsequent to the delivery of the sheriff's original deed to Hoskins. The cause, being at issue, was tried, and from the evidence taken, which is wholly documentary, the court found that the sheriff's deed was void, and thereupon decreed that the defendant was the owner in fee of the real property, that the plaintiff had no estate or interest therein, that a sum of money deposited by the defendant with the clerk as the amount of taxes paid by Hoskins, including the interest thereon and costs, be turned over to him; and he appeals.

James McCain and W. T. Vinton, both of McMinnville (McCain, Vinton & Burdett, of McMinnville, on the brief), for appellant. C W. Talmage, of Tillamook (Geo. Willett, of Tillamook, on the brief), for respondent.

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

A brief summary of the errors committed in the proceedings undertaken to impose a tax on the premises, and in attempting to foreclose the alleged lien therefor, including a sale of the land, which departures from the prescribed rules of procedure it is asserted support the decree, and render the sheriff's deed void, will be given. Thus there were received in evidence six original volumes, the top of each page of which was entitled "Assessment Roll for Yamhill County, Oregon, for the Year" 1904 to 1909 both included. From these records, excerpts have been entered on a separate sheet of an assessment roll for that county which has been brought up and shows an assessment for each of the years named as follows: For 1904 and 1908 under the caption, "Name of Taxpayer," is written "Byers, Alson G."; under the same title for 1905 and 1906 appear the words, "Byers, Alonson G."; and for 1907 and 1909 the name is written, "Byers, A G." Beneath the designation, "Description of Land," are noted for each of the years referred to the following: "N. E. 1/4 Sec. 6." In addition to such memoranda, and under the specification last mentioned, appear the abbreviations and figures, "T. 3 S., R. 5 W.," for 1906, and for 1909 there are also added, "T. 3, R. 5 W." Under the captions, "Section," "Township," and "Range," for the years 1904, 1905, and 1906, are noted the figures "6," "5," and "3," respectively, without indicating whether the figure 5 was intended to mean a township either north or south of any parallel of latitude adopted as a base, or the figure 3 as meaning a range east or west of the Willamette meridian, while under the same caption for the years 1907, 1908, and 1909 are written the figures "6," "3," and "52," respectively, without any other designation.

The extracts from the rolls mentioned show that, the tax imposed on the land for the year 1904 not having been paid, the premises, in consequence of each delinquency, were sold to Yamhill county January 15, 1906, for $8.53, the amount of the tax, interest, etc. The tax for the year 1905 was not paid, whereupon the land was again sold to the Eastern Investment Company December 22, 1906, for $7.30, the sum of the tax, interest, etc. The tax for the year 1906 not having been paid within six months after it became due, certificate of delinquency No. 10 was issued February 8, 1908, for $9.38, the amount of the burden, interest, etc., to Hervey Hoskins, the plaintiff herein, who at that time redeemed the premises from the prior sales by paying the purchasers $9.59 and $8.15, respectively, as the amounts due each. The certificate stated that the name of the person to whom the real property was assessed was Alonson G. Byers, and described the premises as follows: "The N.E. 1/4 Sec. 6, Twp. 3, R. 5." The plaintiff also paid the taxes charged against the land for the years 1907, 1908, and 1909, to wit, $20.87, $25.90, and $27.38, respectively. No redemption having been made, and more than three years having elapsed from the date of the delinquency, a suit was instituted May 3, 1910, in the circuit court for Yamhill county, Or., by Hoskins against Byers to foreclose the lien of such taxes. The complaint correctly described the real property. An original summons issued therein was returned, with an indorsement thereon by the sheriff of that county to the effect that after due search and diligent inquiry he was unable to find the defendant Byers within the state of Oregon. Thereupon Hoskins made an affidavit for the services of summons by publication, setting forth the substance of the complaint, the effort that had been made to serve the original summons personally, stating substantially that he had made due search and diligent inquiry for Byers within the state of Oregon, but had been unable to find him therein, or to ascertain his place of residence; that affiant in order to discover where the defendant in that case was, inquired in relation thereto of W. G. Henderson, the sheriff of Yamhill county, Or., who stated to plaintiff that he had been unable to find Byers, or learn of his whereabouts; that about May 6, 1910, affiant inquired of Ross Car, who had been the defendant's neighbor when he had lived in such county, and he was informed by Car that he had not seen Byers for seven years; that Car further told the affiant that he had talked with members of the defendant's family who stated that they had known nothing of him or of his whereabouts since his departure from that county seven years prior thereto. The affidavit further states in effect that Byers is a nonresident of Oregon, that his place of residence and post office address are unknown, and cannot be ascertained by the affiant after due diligence and inquiry, that personal service of the summons cannot be made upon Byers, and that the affidavit is made in good faith in order that service of the summons may be made by publication.

Based on the affidavit an order was made by the judge of that court May 16, 1910, that the summons be published in the News Reporter, a newspaper published at McMinnville, in that county, once a week for a period of 60 days from the first publication thereof, and that, since Byer's place of residence and post office address were unknown, and could not be ascertained after due diligence, Hoskins was relieved from the necessity of mailing a copy of the summons to the defendant in that suit. Predicated upon such order an alias summons was issued and published as thus directed, the proof of which was made by the affidavit of the printer of the newspaper mentioned.

Byers having failed to appear or answer, a decree was given July 30, 1910, foreclosing the lien for the taxes, which burdens with interest at the rate...