Lane County v. Bristow

• Decision Date: 06 November 1946
• Citation: 179 Or. 653,173 P.2d 954
• Parties: LANE COUNTY <I>v.</I> BRISTOW ET AL.
• Court: Oregon Supreme Court

179 Or. 653

173 P.2d 954

LANE COUNTYv.

BRISTOW ET AL.

Supreme Court of Oregon.

Argued September 24, 1946.

Affirmed November 6, 1946.

Appeal and error — Pleading — Review

1. The statute respecting compliance with order directing part of a pleading to be stricken, manifests intent to authorize review by Supreme Court of an order striking part of a pleading where party against whom the ruling is made has filed an amended pleading which omits the matter ordered stricken.

Appeal and error — Pleading — Review

2. An order striking part of pleading and providing that defendant may have ten days from date thereof in which to file an amended answer, though permissive in form, in effect required defendant to file amended answer eliminating matter ordered stricken, and, therefore, the order striking part of the pleading was reviewable on appeal under statute.

Taxation — Foreclosure — Notice

3. Under statute, it is not essential to validity of notice to be published in tax foreclosure proceedings by a county that any person other than the person appearing on latest tax roll in the hands of tax collector at date of first publication of such notice, as the owner of any property therein described, should be named as a party defendant in the notice.

Taxation — Foreclosure — Redemption

4. Where notice concerning redemption in tax foreclosure proceedings was published in conformity to requirements of statute and copies of such notice were properly sent to taxpayer, but sheriff's deed to county made erroneous recitation as to the notice of expiration of period of redemption, sheriff had authority to execute a second deed for purpose of making the recital concerning notice of expiration of period of redemption conform to the fact.

Taxation — Limitation of actions

5. The statute requiring every proceeding for purpose of determining validity of sale of lands for taxes to be commenced within two years from date of sale for taxes by sheriff is a "statute of limitations", and not a "statute of prescription", and, hence, was available as a defense even where purchaser at tax sale had not been in possession of the land for the full statutory period.

Taxation — Limitation of actions

6. The dominant purpose of statute requiring every proceeding for purpose of determining validity of sale of land for taxes to

be commenced within two years from date of sale for taxes by sheriff was to bar an attack on the sale after passage of the two-year period.

Taxation — Limitation of actions

7. The statute requiring every proceeding for purpose of determining validity of sale of lands for taxes to be commenced within two years from date of sale for taxes by sheriff could be invoked in a case which was not commenced by party seeking to call in question validity of the tax sale.

Action — "Proceeding" defined

8. Generally, a "proceeding" is the form and manner of conducting judicial business before a court or judicial officer, including all possible steps in an action, from its commencement to the execution of a judgment, and in a more particular sense it is any application to a court of justice for aid in enforcement of rights, for relief, for redress of injuries, or damages or for any remedial object.

Taxation — Limitation of actions

9. Defendant, by filing his answer in county's suits to quiet title to lands acquired by it through tax foreclosure proceedings, in which he charged that the tax foreclosure proceedings were illegal and void, commenced a "proceeding" for purpose of determining validity of the tax sale, within meaning of statute requiring every proceeding for purpose of determining validity of sale of land for taxes to be commenced within two years from date of sale for taxes by sheriff.

Taxation — Foreclosure — Irregularities

10. Alleged errors in computing interest on delinquent taxes, which resulted in an overcharge against the lands, and an alleged excessive assessment of one of the parcels of the land sold for taxes, if actually made, were mere irregularities which did not affect jurisdiction of the court in tax foreclosure suit, and could not be inquired into in suits by county to quiet title to the lands acquired by it through the tax foreclosure proceedings.

Taxation — Limitation of actions

11. Defendant was barred from challenging tax sale on account of alleged errors in computing interest on delinquent taxes which resulted in overcharge against the lands and alleged excessive assessment of one of the parcels by the two-year statute of limitations, where defendant did not challenge the sale until more than six years thereafter when county brought suits to quiet title to the lands acquired by it through the tax foreclosure proceedings.

Taxation — Sale — Tender

12. A proper tender may be a condition precedent to the assertion of rights by one challenging validity of a tax sale, but, if his challenge must otherwise fail, a tender will avail him nothing.

                  See 51 Am. Jur. 995; special statute of limitations applicable to
                tax deeds, note, 5 A.L.R. 164; 61 C.J., Taxation, § 2028
                

IN BANC.

Appeal from Circuit Court, Lane County.

G.F. SKIPWORTH, Judge.

E.O. Immel, of Eugene (with Harris & Bryson and O'Connell & Darling, both of Eugene, on brief), for appellant.

Windsor Calkins, of Eugene (with William S. Fort, District Attorney pro tem, and Calkins & Calkins, both of Eugene, on brief), for respondent.

AFFIRMED.

LUSK, J.

Plaintiff Lane County brought two suits to quiet title to lands acquired by it through tax foreclosure proceedings. Darwin Bristow was a defendant in each of the said suits and the only defendant who appeared therein. The issues in each case being the same except that they pertain to different properties, the cases were consolidated for trial and resulted in decrees for the plaintiff from which Bristow, hereinafter called the defendant, has appealed.

The controversy arises out of a general foreclosure suit commenced by Lane County on August 30, 1938, pursuant to the provisions of Ch. 470, Oregon Laws 1937, to foreclose certificates of delinquency theretofore issued by the county for delinquent taxes levied upon the lands now in question and upon numerous other parcels of real estate. The lands now involved were assessed to the defendant Bristow, who was named as a defendant in the foreclosure suit and defaulted. A decree of foreclosure was entered on November 26, 1938, and on the same day the properties were sold to the county. There having been no redemption within the time prescribed by law, a sheriff's deed to all such properties was issued to the plaintiff on December 15, 1939. The present suits were commenced, one on August 9, 1944, and the other on October 6, 1944. The lands in controversy have not been in the actual possession of anyone since the county acquired its titles.

The defense to the present suits is based upon alleged irregularities in the foreclosure proceedings and in the sheriff's deed to the county, which, it is contended, invalidate the decree and the titles based thereon. The circuit court held that the foreclosure proceedings were free from defects and that the defendant was barred by the statute of limitations from attacking the sale.

We proceed to a consideration of the defendant's contentions.

It is urged, first, that the court erred in striking from the defendant's original answers certain allegations to the effect that the defendant was only the holder of the naked legal title to the properties in question and that other persons were the actual owners thereof, and that plaintiff knew this to be the fact. The theory of the defendant is that these other persons should have been named as parties defendant in the foreclosure proceedings. Plaintiff says that defendant has waived the alleged error by filing an amended answer from which the allegations stricken were omitted, and cites as authority Voyt v. Bekins Moving & Storage Company, 169 Or. 30, 38, 119 P. (2d) 586, 127 P. (2d) 360. That case, however, was decided before the enactment of Ch. 279, Oregon Laws 1943, an amendment of § 1-903, O.C.L.A., which changed the rule of practice theretofore prevailing in this particular. The amendment, so far as now pertinent, reads:

"In all cases where part of a pleading is ordered stricken, the court may, in its discretion, require an amended pleading to be filed which eliminates the matter ordered stricken. By complying with the court's order, the party filing the amended pleading shall not be deemed to waive the right to challenge the correctness of the court's ruling upon the motion to strike and it shall be subject to review on appeal from final judgment in said cause."

1, 2. The plain intent of the foregoing provisions is to authorize review by this court of an order striking part of a pleading where the party against whom the ruling is made has, in obedience to the court's order, filed an amended pleading which omits the matter ordered stricken. In these cases each of the orders in question contains the following language:

"It is hereby further ordered, That the defendant may have ten (10) days from date hereof in which to file an amended answer."

We think that while the form of the orders just quoted is permissive, in effect they required the defendant to file amended answers eliminating the matter ordered stricken; and, therefore, the 1943 legislation governs and the error assigned is properly before us.

3. There is no merit, however, in defendant's contention. The statute prescribing the notice to be published in tax foreclosure proceedings by a county provided:

"All persons interested in any property involved in any such proceeding may be made codefendants, and if unknown, may be named therein as unknown owners, and the publication of such notice shall be sufficient service on all persons interested. The name of the person appearing on the latest tax roll in the hands of the tax collector at the date of the first publication of such notice, as the...