Nickum v. Gaston
| Citation | 24 Or. 380,33 P. 671 |
| Parties | NICKUM v. GASTON. |
| Decision Date | 10 July 1893 |
| Court | Oregon Supreme Court |
Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.
Action by J.M. Nickum against Walter Danvers, Isabella Danvers, and Tiny Gaston to recover land. Plaintiff had judgment, and defendant Gaston appeals. Reversed.
The other facts fully appear in the following statement by BEAN J.:
This action was commenced on the 15th of October, 1891, to recover the possession of certain real property in Multnomah county. For the purposes of this appeal it is sufficient to say that on April 10, 1874, one G.W. Brown, who was the owner of the land in controversy, executed and delivered to Susannah Nickum a mortgage thereon to secure the payment of the sum of $600 and interest, due one year after the date thereof. On the 29th of the same month Brown sold and conveyed the land to one Laura Bennett, subject to the Nickum mortgage, and in 1879 it was sold for the taxes of the preceding year to one Lucy Mason, who received and recorded her deed therefor on the 18th of July, 1881. On December 22, 1882, default having been made, Susannah Nickum commenced a suit to foreclose her mortgage, making Lucy Mason a party thereto, alleging that her purchase of the land at the tax sale was fraudulent and void as to the mortgage. Such proceedings were afterwards had in the foreclosure suit as that on the 19th of September 1884, a decree was entered foreclosing the mortgage as to all the defendants except Lucy Mason, and dismissing the complaint as to her "without prejudice to plaintiff's right to have said Lucy Mason's title to said premises determined in a proper proceeding."
On a sale of the premises under the decree of foreclosure Susannah Nickum became the purchaser, receiving her deed on the 21st of March, 1885, and she has subsequently conveyed the premises to the plaintiff. On November 21, 1884, Lucy Mason sold and conveyed the land in controversy to the defendant Tiny Gaston, who gave evidence on the trial tending to show that she was a bona fide purchaser for value and without notice of any fraud in the purchase of the land by Lucy Mason, and that she and her grantor had been in the adverse possession of the land from the date of the tax deed to the time of the trial. To avoid the effect of the tax deed the plaintiff gave evidence tending to show that the purchase by Lucy Mason was made in pursuance of a fraudulent arrangement between her and Laura Bennett, who owned and was in possession of the land at the time the assessment was made by which Laura Bennett was to suffer the land to be sold for taxes, in order to cut off the Nickum mortgage, and Lucy Mason was to become the purchaser at such sale, and subsequently convey the land to her, and that the defendant Tiny Gaston purchased of Lucy Mason with knowledge of these facts. The court instructed the jury, in effect, that if such an arrangement or agreement existed between Laura Bennett and Lucy Mason for the purpose of defeating the Nickum mortgage the tax sale "did not confer any title upon the purchaser, but simply stands as a payment of the taxes; it has no further force or effect," and "could not be used for any other purpose, except to pay the taxes;" and that the three-years limitation provided in section 2840, Hill's Ann.Laws, has no application to this case.
The trial resulted in a verdict and judgment in favor of plaintiff, from which the defendant Tiny Gaston appeals, assigning as error the instruction referred to.
P.L. Willis and Seneca Smith, for appellant.
A.H. Tanner, for respondent.
BEAN, J., (after stating the facts.)
The contention for appellant is that all inquiry into the validity of the tax sale to Lucy Mason is cut off by section 2840, supra, which provides that "any suit or proceeding for the recovery of lands sold for taxes, except in cases where the taxes have been paid, or the land redeemed, as provided by law, shall be commenced within three years from the time of recording the tax deed of sale, and not thereafter," unless the plaintiff can show that the tax for which the land was sold was actually paid before the sale, or that the land was subsequently, and within the time allowed by law, redeemed; or, if this is not so, the tax deed was at least prima facie valid, and will support the title of defendant if she is a bona fide purchaser for value, whether the alleged combination between Laura Bennett and Lucy Mason existed or not; and hence it was error, under the issues in this case, for the court to instruct the jury that, if they believed such arrangement did exist, the tax deed was of no effect, and "could not be used for any purpose except to pay the taxes." For the plaintiff the contention is that, as Laura Bennett was the owner and in possession of the property at the time of the assessment, it was her duty, as against the mortgagee, to pay the taxes; and if she entered into an arrangement with Lucy Mason by which she was to suffer the land to be sold for such taxes, and purchased by Lucy Mason, for the purpose of cutting off the lien of the Nickum mortgage, the sale operated merely as a payment of the taxes, and Lucy Mason did not acquire, either by her purchase or tax deed, any right or title whatever to the property, which she could convey to the defendant.
The law is well settled that a mortgagor, or his successor in interest, remaining in possession of the land, cannot permit the mortgaged property to be sold for taxes, and become the purchaser thereof, either directly or through the agency of another, for the purpose of cutting off a prior lien. He is under a legal obligation to pay the taxes, and cannot, by neglecting to perform this duty, and suffering the land to be sold in consequence of such neglect, add to or strengthen his title by purchasing at the sale himself, or by subsequently buying from a stranger who purchased thereat. By such a purchase he does not acquire any title or right to the property as against the lienholder better than he had...
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