Martin v. White
| Decision Date | 16 March 1909 |
| Parties | MARTIN v. WHITE et al. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Columbia County; Thomas A. McBride Judge.
Suit by Richard Martin, Jr., against Martin White and others. From a decree for plaintiff, defendants appeal. Affirmed.
This is a suit to remove a cloud from plaintiff's title to the W 1/2 of the N.E. 1/4 and the E. 1/2 of the N.W. 1/4 of section 27, township 4 N., range 4 W., of W.M., in Columbia county Or. The suit was commenced October 19, 1905, and plaintiff alleges that he is now, and for more than 10 years last passed has been, the owner of said real property, and entitled to the possession thereof; that it is not now, and has never been, in the actual possession of any person; and that defendants claim to have some interest therein. He then sets out the facts constituting such cloud, namely, a pretended tax title, obtained by defendants by means of delinquent tax sales made for taxes for the years 1892, 1893 1895, and 1897. The sale of the land for the tax for the year 1895 is void, for the reason that the property assessed is the W. 1/2 of the N.W. 1/4 and the E. 1/2 of the N.E. 1/4 of said section 27, and not the property in controversy here, and therefore it requires no further consideration. For the year 1892 the property was assessed to Henry Johns and the property described as the "W2 NE4 & E2 NW4, Section 27, Township 4, Range 4," and was sold on October 25, 1898, for the tax thereon, at which sale Columbia county became the purchaser, as authorized by the legislative act of 1893 (Laws 1893, p. 28), by which a county judge is authorized to bid for, and in behalf of, the county the amount of the tax at such sale. The assessment for the year 1893 is identical with that for 1892, and the property was sold on July 26, 1894, for the tax for the year 1893, at which sale Columbia county became the purchaser. At the time of the assessment for the year 1897, plaintiff was the owner of the property, but it was assessed to Henry Johns; and it was described as "W2 NE4 & E2 NW4, Section 27, Township 4, Range 4," and did not state that the property was situated in Columbia county, Or. On October 25, 1898, the sheriff, by virtue of a delinquent tax warrant, directing the sale of said land for the tax of the year 1897, sold the same, at which sale Columbia county became the purchaser; and thereafter, on July 8, 1901, pursuant to the provisions of section 3133, B. & C. Comp., being a legislative act of the year 1901, which required the sheriff to proceed to sell all lands to which the county shall have acquired title by means of tax sales, the sheriff advertised for sale, and sold, said land to the defendants, and on August 22, 1901, executed to them a deed therefor, as provided by section 3134, B. & C. Comp., which deed only relates to the sale for the tax of 1897, and was recorded August 24, 1901. A demurrer to the complaint was overruled by the court, and a decree rendered for the plaintiff upon the complaint, from which defendants appeal.
J.W. Day, for appellants.
S.H. Gruber, for respondent.
EAKIN J. (after stating the facts as above).
The assessment of the property for the year 1897 was made under section 2752, Hill's Ann.Laws 1892, as amended in 1893 (Laws 1893, p. 6), which provide that the assessment roll shall contain "a full and complete assessment of such taxable property entered thereon, including a full and precise description of the lands or lots owned by each person therein named on March first of each year, at the hour of one o'clock a.m. *** All land shall be assessed and taxed in the county in which the same shall lie, and every person shall be assessed in the county where he resides on the first day of March of the year, when the assessment shall be made for all real and personal property then owned by him within such county; and unoccupied land, if the owner is unknown, may be assessed as such, without inserting the name of any owner." Sections 2768, 2770, 2776, Hill's Ann.Laws 1892, also directly require or contemplate that the assessment shall be made in the name of the owner of the property, if the owner is known, or can with reasonable diligence be ascertained, and, if not known, then it must
be assessed to unknown owner. In Lewis v. Blackburn, 42 Or. 114, 69 P. 1024, this question was under consideration, in which Mr. Justice Bean says: Thus it will be seen that the assessment of the property for the year 1897 in the name of Henry Johns, while plaintiff was the owner thereof, was insufficient to make either plaintiff or his property liable therefor, and was void. Again, the description of the property was insufficient to identify it. It fails to give the township and range in which the land is situated. This might have been rendered definite if disclosed by the assessment to be situated in Columbia county; there being but one township 4, range 4, in that county, but that is not stated. There are in Oregon three townships numbered 4 in range 4, and the description is insufficient to identify the property involved here, and this defect applies equally to the assessment for the years 1892 and 1893.
The defendants suggest that the fact that the property is upon the assessment roll for Columbia county is sufficient to justify the presumption that the property is in that county, and therefore must be in township 4 N., range 4 W., W.M., but this presumption cannot be indulged. The assessor has no jurisdiction to assess property unless it is in his county, and his description of the property should show his jurisdiction, and we cannot presume because it is on his assessment roll that it is situated in Columbia county. Neither are these defects cured by section 3135, B. & C. Comp. The first part of that section was intended as a curative provision in case of a delinquent tax sale in which the county has become the purchaser. By it such sales are declared valid and shall pass good title to the lands assessed "notwithstanding (1) any indefiniteness or imperfection in the description of such lands on the assessment roll: Provided, that the person assessed shall, at the time of the assessment, have been the owner of record of a parcel of property to which such description shall have been applicable, and of only one such parcel; or (2) the omission in the assessment roll of the name of the owner, or the entry of a name other than that of the true owner, or a mistake in the name of the owner: Provided, the property be correctly described." The first of these provisions seeks to cure defects in the description of the property, and the second to cure assessments made in the name of the wrong party, but the assessment in question is not within either of these provisions. As to the first proviso, although so far as the complaint discloses Johns may have been the owner of record of the property in question here at the time of the assessment, yet it does not appear that he was the owner of record of a parcel of property to which the description in the assessment roll is applicable, for the property assessed does not disclose in what township or range it was situated, and therefore does not identify it as the property involved here. As to the second proviso, the name of the owner was omitted, and it was assessed in the name of one other than the true owner, but the property is not correctly described, and therefore these defects in the assessment are not cured by the statute. Lewis v. Blackburn, 42 Or. 114, 69 P. 1024. And, as the sales for the years 1892 and 1893 are not included in the deed to the defendants, the statute of limitation has no application to the right of plaintiff as against those sales.
The defendants also urge the bar of the statutes of limitation provided by sections 3128, 3146, 3135,...
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