Marx v. Hanthorn

• Decision Date: 20 April 1887
• Citation: 30 F. 579
• Parties: MARX v. HANTHORN.
• Court: U.S. District Court — District of Oregon

30 F. 579

MARX v. HANTHORN.

United States Circuit Court, D. Oregon.

April 20, 1887

Syllabus by the Court

The sheriff in office is the proper person to make a deed to property sold for delinquent taxes, on the failure of the owner to redeem the same.

A deputy-sheriff may execute a deed to property sold for delinquent taxes, and when he does do so he should execute and acknowledge the same for and in the name of his principal.

The legislature may make a tax deed conclusive evidence of the regularity of the prior proceedings, so far as they rest in the discretion of the legislature, and an omission to perform them may subsequently be cured or excused by it; but it cannot make such deed more than prima facie evidence of the performance of any act, or of the existence of any fact essential to the validity of the transaction; and to do so would be to deprive the party of his property with out due process of law, contrary to the fourteenth amendment.

Reasonable notice of the sale of real property for delinquent taxes is an essential part of the proceeding to deprive the owner of his title thereto, and the legislature cannot make the tax deed conclusive evidence of the fact that the same was duly given; and the name of the owner, when known and entered on the assessment roll, is a material part of such notice.

Where a person purchases real property at a sale for delinquent taxes, under a statute which makes the tax deed conclusive evidence of the regularity of the prior proceedings, with certain exceptions, the legislature, as to any fact or matter of which it had the power to make the deed conclusive evidence, cannot thereafter make the same only prima facie evidence thereof, without impairing the obligation of the contract of the state with the purchaser of the property.

Lots 3 and 4, in block E, in Portland, were assessed for taxation to the owner, Ida F. Hanthorn, and so transcribed onto the tax-roll, on which the taxes then levied on the property were extended. The taxes were returned delinquent, and the property entered on the delinquent tax-roll as that of Ida J Hawthorn, and in due time so advertised and sold, and a certificate of the sale given to the purchaser. The property not being redeemed at the expiration of two years, the sheriff made a deed thereof to the purchaser, in which the prior proceedings were represented as having been had and done concerning the property of Ida F. Hanthorn. The grantee of the purchaser afterwards brought an action against Hanthorn to recover the possession of the premises. Held that the defendant, notwithstanding the statute in force at the date of the sale and deed, making the latter conclusive evidence of the regularity of the prior proceeding, as to the notice of the sale, might show that the property was advertised and sold as that of Hawthorn instead of Hanthorn, and thereby avoid the deed.

W Scott Beebe and John W. Whalley, for plaintiff.

George W. Durham and F. A. E. Starr, for defendant.

DEADY J.

This action is brought by the plaintiff, a subject of the emperor of Germany, against the defendant, a citizen of Oregon, to recover the possession of lots 3 and 4, in block E, in the town of Portland. The action was originally brought against B. Campbell, the party in possession, who having answered that he was in possession as the tenant of Ida J. Hanthorn, the latter was substituted for him as defendant. It is alleged in the complaint that the plaintiff is the owner of the premises, an?d that the defendant wrongfully withholds from him the possession thereof. The answer contains a denial of the allegations of the complaint, and a plea of title in the defendant with a right to the possession, and the replication denies the plea. The defendant claims the premises under a deed of August 28, 1878, from W. W. Chapman and Margaret F., his wife, the latter being the patentee of the Untied States, under the donation act of 1850, of a tract of land, including said block E. The plaintiff claims under two deeds, one from ex-Sheriff Sears of July 29th, and the other from Sheriff Jordan of July 30, 1886, each purporting to be made in pursuance of a sale of the property for taxes by the former on June 30, 1884. By a stipulation filed in the cause it is admitted that the defendant was the owner in fee of the premises at the time of the assessment and sale of the same for taxes, and that she is still such owner, unless such sale and the conveyance thereon had the effect to pass the title to the purchaser thereat; and that the property is worth $6,000. The case was tried by the court without the intervention of a jury, and on the trial the proceedings constituting the assessment, levy of taxes, and the sale of the property, and the conveyance thereon, were received in evidence, subject to objection for want of competency and materiality.

From these it appears that on August 27, 1883, the premises were listed by the assessor of Multnomah county on the assessment roll thereof, for taxation in that year, as the property of Ida F. Hanthorn, and valued at $2,200; that on October 17, 1883, the entry on the assessment roll concerning said property was transcribed onto the tax-roll of said county by the clerk thereof, and on the same day the taxes for school, state, and county purposes, amounting to $34.32, were levied on said property, and extended on said tax-roll, by the county court of said county, and the sheriff thereof commanded, by a warrant indorsed thereon, signed by the county clerk and sealed with the seal of said court, to collect said taxes by demanding payment of the same, and making sale of the goods and chattels of the person charged therewith; that the sheriff, George C. Sears, to whom said warrant was directed, having returned that the tax levied on said property was unpaid and delinquent, the latter was on April 22, 1884, entered on the delinquent tax-roll of said county by the clerk thereof, as the property of Ida F. Hawthorn, and a warrant indorsed thereon, signed by said clerk and sealed with the seal of said county, commanding said sheriff to levy on the goods of the delinquent tax-payer, and, in default thereof, on the real property mentioned in said tax-list, or sufficient thereof to satisfy said taxes, charges, and expenses; that afterwards said sheriff returned that he received said delinquent tax-list and warrant on April 22, 1884, and, in pursuance thereof, and in default of personal property, he levied on said lots three and four, and advertised and sold the same on June 18, 1884, as the property of Ida F. Hawthorn, to J. E. Bennett, for $37.51, the amount of said delinquent tax and costs, and expenses thereon; that on July 29, 1886, George C. Sears, as ex-sheriff of said Multnomah county, executed and delivered to said Bennett a deed for the premises, in which the proceedings concerning the assessment of said property, the levy of the taxes thereon, the non-payment and delinquency of the same, and the sale of the property therefor, were substantially recited, except that it does not thereby appear that the premises were entered on the delinquent tax-list, or advertised or sold as the property of Ida F. Hawthorn, but as that of Ida F. Hanthorn; that on July 30, 1886, Thomas A. Jordan, as sheriff of said Multnomah county, by A. W. Witherell, deputy, executed and delivered to said Bennett a deed of the premises, containing the same recitals as the one from Sears. Each deed was acknowledged on the day of its execution, and afterwards admitted to record. The original Jordan deed was put in evidence, and also a certified copy of the record. But the execution of the original was not otherwise proved, and it is contended that the acknowledgment is not legal, and therefore it cannot be read in evidence without direct proof of its execution.

On July 31, 1886, Bennett and his wife, Alvira F., in consideration of $500, as recited in the deed, quitclaimed the premises to the plaintiff.

The deed by Sears, the ex-sheriff, is unauthorized and void. When he made the sale, and gave the certificate thereof to the purchasers, and returned his proceedings in that respect to the clerk of the county court, the process under which he acted was fully executed. A sheriff who sells real property on a warrant for the collection of delinquent taxes is not thereby authorized or required to make a formal conveyance thereof to the purchaser, but only to deliver him a certificate of the fact of such sale. If the land is redeemed within two years thereafter, the effect of the sale ceases, and no further official action is required in the premises. But, in case no redemption is had within that time, the statute (Laws Or. 767, Sec. 90) directs that 'the sheriff' shall execute a conveyance to the purchaser or his assigns. This command is addressed to the 'sheriff' then being, and not to any ex-sheriff who may have made the sale two years before. The conveyance itself is in the nature of a further assurance given by the state in evidence of the fact that a sale of property which was only conditional when made has, by the lapse of time and the omission of the former owner, become absolute. And the judge or the clerk of the county court might, with equal propriety, have been designated as the person to execute the same.

Nor is it material in this connection that an outgoing sheriff is required (Code Civil Proc. Sec. 986) to 'complete the execution of all final process which he has begun to execute,' and that a warrant for the collection of delinquent taxes is 'deemed an execution against property, * * * and shall be executed and returned in like manner,' except as otherwise provided, (Laws Or. p. 766 Sec. 82;) for both a warrant and an execution are fully executed when a sale is made...