Mount v. McAulay

• Decision Date: 30 January 1906
• Parties: MOUNT v. McAULAY et al. [*]
• Court: Oregon Supreme Court

83 P. 529

47 Or. 444

MOUNT v. McAULAY et al. ^[*]

Supreme Court of Oregon

January 30, 1906

Appeal from Circuit Court, Baker County; Samuel White, Judge.

Suit by Elsie L. Mount against Robert McAulay and others. From a decree of dismissal, on sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

This suit was commenced in June, 1905, to remove a cloud from title caused by a tax deed, and comes here on appeal from a decree entered on a demurrer to the complaint, which avers that from 1893 to the 16th day of April, 1895, L.O. Stearns was the owner of the premises in controversy, except a right of way 100 feet wide over and across the same, owned and occupied by the Oregon Railway & Navigation Company, for railroad purposes; that prior to the 1st day of March, 1895 Martha E. Hallett and Fred N. Hallett purchased Stearns' interest in such property under a decree foreclosing a mortgage thereon, and received a sheriff's deed on April 16, 1895, which was duly recorded on the 25th of May following; that the Halletts owned and possessed the property, except the right of way referred to, until June 5 1905, when they sold and conveyed the same to the plaintiff ever since which time she had been the owner in fee simple and in the possession thereof; that the defendants claim some interest or estate therein by virtue of a tax deed dated September 23, 1899, and recorded on the 4th of October of the same year, made in pursuance of a sale by the sheriff of Baker county to satisfy what purported to be the delinquent taxes assessed against the property for the year 1895, a copy of which deed is annexed to and made a part of the complaint that such deed is void and of no effect for divers and sundry reasons set out; that since the execution thereof and prior to the commencement of this suit the plaintiff tendered to defendants the amount for which the lands were sold at tax sale, together with 20 per cent. additional thereon, and all taxes which had been paid by the purchasers after such sale, together with interest thereon at the rate of 10 per cent. per annum from the respective times of payment of such sums up to the time of the filing of the complaint, and deposited in court the sum of $75, from which the above amounts might be paid.

O.B. Mount, for appellant.

F.M. Saxton, for respondents.

BEAN C.J. (after stating the facts).

It is admitted by the defendants, if we understand their position, that the allegations of the complaint are sufficient, if true, to avoid the tax sale and deed. Their contention, however, is that, if the tax deed, as plaintiff claims, is void on its face, it does not create such a cloud on the title of the plaintiff as will be relieved against by a court of equity; and that, if it is not so void, this suit is barred by the short statute of limitations. The fact that a deed or instrument purporting to convey real estate is void on its face is no objection to the interposition of a court of equity at the suit of the owner, who is in possession, to cancel and annul such deed. A void deed is often apt to create doubt and uncertainty in respect to the title of the true owner and to interfere materially with the enjoyment and disposition of his property, and therefore equity will relieve against it. Murphy v. Sears, 11 Or. 127, 4 P. 471; White v. Espey, 21 Or. 328, 28 P. 71; George v. Nowlan, 38 Or. 537, 64 P. 1; Hughes v. Linn County, 37 Or. 111, 60 P. 843; Moores v. Clackamas County, 40 Or. 536, 67 P. 662. And so there is no merit in this objection.

If, on the other hand, the deed is not void on its face, we do not think the suit is barred by the short statute of limitations. There are three sections of the statute now applicable to the limitation of actions and suits concerning land sold for...