Johnson v. White
| Decision Date | 09 January 1912 |
| Citation | 60 Or. 611,119 P. 769 |
| Parties | JOHNSON v. WHITE et al. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.
Action by Mary E. Johnson against Charles A. White, George Wetherby and others. From a decree for plaintiff, defendant Wetherby appeals. Affirmed.
See also, 112 P. 1083.
This is a suit to foreclose a mortgage on the N. 1/2 of S.W. 1/4 of section 12, township 1 S., range 4 E., W.M., executed by defendant Arthur Stipe to plaintiff on July 3, 1904, to secure a note for $465. From a decree in favor of plaintiff defendant appeals.
Plaintiff alleges, in addition to the usual form as to the mortgage that defendant George Wetherby purchased the mortgaged premises at a tax sale for the taxes of 1904, amounting to $5.08, and for those of 1907, amounting to $5.40; that each of the defendants have or claim to have some right to interest in, or lien upon, said mortgaged premises, but the same, if any exist, are subsequent in time and inferior in right to the lien of plaintiff's said mortgage; that plaintiff tendered to Wetherby the sum of $20, the amount of the taxes, interest, and penalties, and deposited the same in court for that purpose.
Defendant Wetherby answered separately, affirmatively alleging that on the 26th of December, 1905, the sheriff of Multnomah county, Or., duly sold to this defendant the real estate described in plaintiffs mortgage for delinquent taxes assessed thereon for the year 1904, amounting to $5.08, and issued a certificate therefor; that on the 29th day of December, 1908, said sheriff excuted a tax deed of said real property to this defendant, which was duly recorded; that defendant is the owner in fee simple of the land, and prays that he be declared such owner, and entitled to the possession thereof.
Plaintiff demurred to the new matter in the answer, and upon the same being overruled replied, denying the issuance of any valid certificate of sale for such taxes, or the execution of any valid deed to said property by the sheriff, and alleging that the same were void for the reason, among others, that the sheriff failed to make a return of the sale of said property for the year 1904, as required by law. Therefore the certificate and deed executed thereon were wholly void. Upon trial the circuit court found, in part, that the certificate and tax deed were void on account of the failure of the sheriff to make such return. The note and mortgage of plaintiff were admitted.
George Wetherby, pro se.
George P. Lent, for respondent.
BEAN, J. (after stating the facts as above).
Upon this appeal defendant Wetherby contends that plaintiff was not authorized to make him a party to the suit. The tax deed, upon its face, shows defendant to be a grantee, and to have an interest in the mortgaged property.
The owner of the equity of redemption is frequently a grantee, either directly or remotely, from the mortgagor, and such grantee, as long as he retains an interest in the premises, is a necessary party to foreclosure; and no decree can be effective against him, unless he is joined. 9 Enc. of Pleading and Practice, 305. All persons interested in the mortgaged premises should be made parties; otherwise they would be entitled to redeem. Landon v. Townshend, 112 N.Y. 93, 19 N.E. 424, 8 Am.St.Rep. 712; Watts v. Julian, 122 Ind. 124, 23 N.E. 698. The complaint, however, shows that defendant Wetherby claims to be a grantee of the premises subsequent to the giving of the mortgage, which complies with the rule in 9 Enc. of Pleading and Practice, 377; Mann v. State, 116 Ind. 383, 19 N.E. 181; Hoes v. Boyer, 108 Ind. 494, 9 N.E. 427.
Section 3108, B. & C. Comp., provides that: "All taxes which may hereafter be lawfully...
To continue reading
Request your trial