Moores v. Clackamas County

• Decision Date: 03 February 1902
• Citation: Moores v. Clackamas County, 40 Or. 536, 67 P. 662 (Or. 1902)
• Parties: MOORES v. CLACKAMAS COUNTY.
• Court: Oregon Supreme Court

67 P. 662

40 Or. 536

MOORES v. CLACKAMAS COUNTY.

Supreme Court of Oregon

February 3, 1902

Appeal from circuit court, Clackamas county; Thos. A. McBride Judge.

Suit by Charles B. Moores against Clackamas county.From a judgment in favor of plaintiff, defendant appeals.Affirmed.

This suit, as revealed by the complaint, is brought to determine a conflicting or adverse claim to realty.It is alleged that plaintiff is the owner in fee simple of the real property in controversy, consisting of certain blocks and lots in Minthorn addition to the city of Portland, and that defendant claims some right, title, estate, or interest therein adverse to the title and interest of the plaintiff; that said claim is unlawful and wrongful and without right, by reason whereof plaintiff is greatly embarrassed in the free use, enjoyment and disposition of the property; that he is unable to state fully the nature of said adverse and conflicting claim, and prays that defendant be required to set it up, etc.The answer "denies that the defendant claims some right title, claim, or interest in or to the premises described in the complaint, or any part thereof, except as hereinafter stated.Denies that defendant's claim is unlawful wrongful, or without right.Defendant, further answering, alleges that the plaintiff has failed and refuses to pay any part of the state, county, and school taxes justly chargeable against the premises described in the complaint for the years 1892, 1893, amounting to $906, $1,358.27, and, although no act has hitherto been done by defendant to enforce collection thereof, the plaintiff now seeks by this suit to quiet title solely for the purpose of avoiding such taxes, and contrary to equity and good conscience."Whereupon the plaintiff replied, denying the said affirmative allegations, and setting up affirmatively that he derived his title from the Oregon Land Company; that said company on January 10, 1891, conveyed the premises in controversy, with other premises, to one H.P. McNary, as trustee for plaintiff and others, who owned the same in common; that subsequently, to wit, on June 3, 1895, the whole of said premises were partitioned by decree of the circuit court of the state of Oregon for Clackamas county, duly made and rendered, and the realty in the complaint herein described set apart to plaintiff in severalty; that in the year 1892 the assessor of Clackamas county assessed the whole of said premises, then belonging to and standing in the name of H.P. McNary as trustee for plaintiff and other persons, to the Oregon Land Company, and that such subsequent proceedings were had in an effort to collect a tax thereon that the whole of said premises, including the realty of plaintiff, was sold to the defendant by the sheriff to satisfy such pretended tax, who on August 8, 1893, issued a certificate of such sale; and that, since the issuance thereof, defendant has been asserting a claim of right and title under it antagonistic to plaintiff's title.Similar facts are set up touching an attempted assessment for the year 1893, whereby an alleged tax of $1,358.27 was levied, and the whole of the premises again sold and bid in by the county, and a like certificate issued to it.The defendant declining to offer any evidence at the trial to substantiate the affirmative allegations of its answer, the plaintiff introduced evidence showing that for the years named all unsold lots in said Minthorn addition were assessed in gross to the Oregon Land Company, followed by proceedings terminating in the issuance of the sheriff's certificates of sale to the defendant.The decree was in accordance with the prayer of the complaint, and the defendant appeals.

D.C. Latourette and Harrison Allen, Dist. Atty., for appellant.

W.T. Slater, for respondent.

WOLVERTON J.(after stating the facts).

It is conceded by counsel for defendant that the assessment forming the basis of the certificates of tax sales against which the plaintiff is invoking the remedial arm of equitable jurisdiction is void and wholly insufficient upon which to base a tax sale, the cardinal contention being that no suit can be maintained against a county to avoid the payment of taxes.But this is not a suit of that nature.The purpose of plaintiff is to get rid of these sheriff's certificates of sale, which he claims are void, not on their face, but under the facts alleged and developed by the evidence.In the case of Trust Co. v. Aylsworth(Or.)66 P. 276, where the assessment was not merely irregular, but wholly void, it was held that a subsequent owner was entitled to maintain a suit to remove a cloud created by the certificate of the sheriff based upon void tax proceedings.So, in Hughes v. Linn Co.,37 Or. 111, 60 P. 843, it was held that plaintiff had a remedy against the county to enjoin the enforcement of a void process for taxes assessed against the former owner, being a warrant in the hands of the sheriff, under which he was threatening to levy upon and sell the property against which the alleged assessment was made, upon the ground that the sale and consequent further proceedings would becloud the plaintiff's title.Within these authorities, plaintiff is not without a remedy.

This brings us to defendant's next contention,--that plaintiff's remedy, if he had any, was by a suit to remove a cloud, and not to quiet title or determine an adverse interest.We have said,...