Multnomah County v. Dekum

• Citation: 93 P. 821,51 Or. 83
• Parties: MULTNOMAH COUNTY v. DEKUM et al.
• Decision Date: 11 February 1908
• Court: Supreme Court of Oregon

93 P. 821

51 Or. 83

MULTNOMAH COUNTY v. DEKUM et al.

Supreme Court of Oregon

February 11, 1908

Appeal from Circuit Court, Multnomah County; John J. Cleland, Judge.

Suit by Multnomah county against Adolph A. Dekum, as trustee of the estate of Frank Dekum, deceased, and others. A decree was rendered for plaintiff, and defendants appeal. Reversed and remanded, with directions.

This is a suit by Multnomah county against Adolph A. Dekum, as trustee under the last will and testament of Frank Dekum deceased, and others, to set aside a compromise and settlement, whereby certain tax certificates were, upon the payment of a part of the money due thereon, canceled of record and surrendered. The facts are that the heirs at law of the deceased are the owners in fee of lots 1 and 2 in block 48, lots 3 and 4 in block 38, and lot 5 in block 18 of the city of Portland, and also lot 1 and the south half of lot 4, in block 10, in Couch's addition to that city. This property was mortgaged, and the incumbrances were assessed in 1892 to the defendants, as follows: The Hartford Fire Insurance Company, lot 1, and the south half of lot 4 in block 10, in such addition, and lot 5, in block 18, in the city, and taxed to the amount of $975; "German Savings and Loan Society, mtge. lot 1, 2, block 48, lot 34, block 38 Dekum, Frank, total tax, $2,921.65." These taxes not having been paid, the property assessed therefor was sold May 13, 1899, to the county, which received from the sheriff tax certificates therefor. The trustee and the heirs, asserting that such sales clouded the title to lots 1 and 2 in block 48 in Portland, commenced a suit against the county to remove the outstanding claim, alleging that the tax imposed on the incumbrance on the premises was invalid, because the debt had been paid, the lien discharged, and the statute authorizing the taxation of mortgages repealed. Such proceedings were had that the suit was dismissed and the decree affirmed on appeal. Dekum v. Multnomah County, 38 Or. 253, 63 P 496. A mandate having been sent down, entry was made of it in the lower court in March, 1901; and the decree remains in full force. The trustee thereafter filed in the county court of that county a petition, which set forth the real property first hereinbefore described, the assessment and taxation of the mortgages, as stated, and the assertion that he believed these taxes were invalid because the mortgages were not assessed to the holders thereof, and that there was no tract of land in block 38 of the city of Portland designated as lot number "34"; but that it should have been described as lots 3 and 4 in that block; that in 1895 the county recognized such infirmities by not attempting the collection of the taxes, but in 1899, when an alias writ was issued, the description of the premises was amended without legal authority; that, as a compromise and settlement, and to avoid the expense of litigation, the trustee offered to pay the sum of $975 in full satisfaction of the entire taxes claimed provided the tax certificates, issued for the property, were canceled of record and surrendered to him. The county court, sitting for the transaction of county business, July 16, 1901, accepted the offer thus made, and upon the payment of the money proposed complied with the terms of the petition; but on May 27, 1903, that court made another order intending to annul such cancellation and surrender, and to effectuate the latter determination this suit was instituted. The complaint sets forth the facts, in substance, as hereinbefore stated, and avers that lots 1 and 2, in block 48, in the city of Portland, constitute the identical property, and the mortgage tax imposed thereon to the German Savings & Loan Society is the...