Tracy v. Reed

• Decision Date: 04 March 1889
• Citation: 38 F. 69
• Parties: TRACY v. REED.
• Court: U.S. District Court — District of Oregon

38 F. 69

TRACY v. REED.

United States Circuit Court, D. Oregon.

March 4, 1889

Syllabus by the Court

By the act of 1882, (Comp. 1887, Sec. 2735,) real property must be assessed to the owner thereof, unless it is unoccupied, and the owner unknown; and an assessment made to a person not the owner of the property is invalid.

The owner of property, for the purpose of taxation, is the person having the legal title or estate thereto or therein, and not one who, by contract or otherwise, has a mere equity therein or a right to compel a conveyance of such legal title or estate to himself.

An act of the legislature (Comp. 1874, p. 767, Sec. 90) made a tax-deed conclusive evidence of the regularity of the assessment, except for fraud; and, on the trial of an action brought by the grantee in such a deed to recover possession of the premises mentioned therein, the parties stipulated the existence of certain facts, from which it appeared in the judgment of the court that the assessment in question was made to a person not then the owner of the property. Held that the effect of such stipulation was a waiver by the plaintiff of the conclusive character of the deed in this respect, and an admission that, if in the judgment of the court the person to whom the property was assessed was not the true owner thereof, then the assessment was invalid, and the tax-deed void.

A tax-deed made in pursuance of a sale of property for a delinquent tax, under an act which provided that such deed shall be conclusive evidence of the regularity of the assessment, except for fraud, is a contract with the state that the deed shall so far remain conclusive evidence of title in the grantee therein, and a subsequent act of the legislature, making such deed only prima facie evidence of such regularity, is void, because it impairs the obligation of the contract. The ruling in Marx v. Hanthorn, 12 Sawy. 377, 30 F. 579, on this point, affirmed.

W Scott Beebe and John M. Gearin, for plaintiff.

Alfred F. Sears and Paul R. Deady, for defendant.

DEADY J.

This action is brought by the plaintiff, a citizen of California against the defendant, a citizen of Oregon, to recover the possession of lot 3, in block 206, of the Couch addition to Portland.

The pleadings consist of the complaint, answer, and reply, from which it appears that the plaintiff claims title to the lot under a sale thereof for a delinquent tax thereon, on June 18, 1884, to which claim two defenses are pleaded: (1) The assessment on which said tax was levied is void, because not made to the owner of the property; and (2) the tax was paid before the sale took place. The defendant also brings into court, and deposits with the clerk, under section 2823, Comp. 1887, the sum of $15.65, the same being the amount of the tax of 1883, and the accruing cost and interest thereon.

The case was submitted to the court for trial without the intervention of a jury, and upon a stipulation concerning certain facts, with the right to either party to introduce further evidence on the trial.

From this stipulation it appears that the property in question exceeds in value the sum of $2,000, and that on July 10, 1880, R. Glisan, being the owner thereof, bargained and sold the same to the defendant by an agreement of that date, signed by himself and wife, and by the defendant.

By the terms of this agreement, erroneously called 'a bond for a deed,' the defendant was to pay $300 for the property,-- the one-half down, and remainder in quarterly payments of $18.75 each, with interest; whereupon the vendors were to convey the premises to her in fee-simple. It was also agreed that the defendant might take possession of the premises at once, and that she would pay all taxes that might be levied on the property; and that, if the purchase money due under the agreement was not all paid by July 10, 1882, the agreement should become null and void at the option of Glisan, and all money then paid thereon become forfeited to the vendors.

On September 14, 1881, the defendant paid the remainder of the purchase money, and on June 7, 1887, the vendors duly conveyed the premises to her.

Prior to July 10, 1880, the property was assessed to R. Glisan as the owner thereof, but after the making of said agreement, and for and during the years 1880 and 1887, both inclusive, the same was assessed to the defendant, without complaint or objection from any one. It is admitted that during the same period, except for the year 1883, the defendant paid the taxes levied on the property in pursuance of said assessments, and she claims to have paid it for that year also.

On May 17, 1884, the sheriff of Multnomah county, in pursuance of a warrant from the county court thereof, levied on the premises as the property of the defendant, for the purpose of collecting the tax levied thereon in 1883, alleged to be then delinquent, and amounting to $3.90, notice of which levy and the sale thereon was duly published in the Daily Oregonian on May 19, 1884; and on June 18, 1884, the property was offered for sale and bid in by the plaintiff for the sum of $6.47, and, no redemption being made thereof, on June 6, 1887, he received a deed from the sheriff therefor.

In December, 1884, the defendant took possession of the premises, and moved into a house thereon, which she commenced to build on the 4th of July previous, in which she has ever since resided.

The defendant testifies that she can neither read nor write; that in the spring of 1884 her daughter, Mrs. Belle Read, came to her with a newspaper in her hand, and called her attention to the fact that her lost was advertised for sale for a delinquent tax, and that she and her daughter went the same day to the sheriff's office and paid the tax to the deputy, A. W. Witherell, then in attendance there, but whether she got a receipt or not she is not certain, and, if she did, she ways it is lost or mislaid. In this statement she is corroborated throughout by her daughter. James Sheridan, who was boarding with the defendant in the spring of 1884, testifies that he heard the conversation between the daughter and the mother concerning the property being advertised for sale, and saw them go out of the house later in the same day, saying they were going to the sheriff's office to pay the tax.

The deputy testified that he has no remembrance of the tax being paid; that there is no stub in the receipt book showing the payment of the tax, as there should be, if it was paid; and he is therefore quite confident it never was paid.

The defendant and her daughter both state that a Mrs. Ann Keating, with whom the latter was living at the time, accompanied her to the house of the defendant, to inform her that the tax was delinquent, and then went with them to the sheriff's office, and saw the same paid. The deposition of Keating was read by the plaintiff, in which she denies this story, so far as she is concerned, in toto. But Sheridan testified that a woman, not known to him, came to the house on this occasion with the daughter, and afterwards left the house with her and the defendant, when the latter said she was going to pay the tax.

The testimony of the deputy, Witherell, that the tax was not paid, because he does not remember it, and because there is no stub to that effect in the receipt book, is, in effect, but little more than the legal presumption that he did his duty in the premises; that is, if the tax was paid, he gave the party a receipt therefor, and made a corresponding entry on the stub thereof. Comp. 1887, Sec. 766, subsec. 15; 2 Whart.Ev. §§ 1318, 1319.

The statute (Comp. 1887, Sec. 2801) makes it the duty of the sheriff on 'the receipt of money for taxes' to give a receipt therefor; and contains a form of the stub thereof, which he keeps in his office, and the particulars to be entered thereon.

The direct, affirmative testimony of one altogether credible witness to the fact of payment of taxes ought to be sufficient to overcome this presumption. But the defendant is pecuniarily interested in the result, and the daughter is as likely to be influenced by that fact as her mother.

I fear it would in some, if not many, instances make tax-titles a delusion and a snare if they could be avoided by the mere oath of the delinquent or his immediate relatives or prospective heirs that the taxes had been paid without taking a receipt therefor.

And the fact that no receipt was taken by the defendant for the payment of this tax is a circumstance of some weight against the statement that the same was paid. The officer would naturally give the defendant a receipt, and she would most naturally, if necessary, demand one.

The testimony of Mrs. Keating does not contradict the testimony of the defendant and her daughter as to the payment of the tax, but only a collateral circumstance of the transaction, as related by them, namely, her presence at such payment.

But, notwithstanding Keating's testimony, the defendant may have paid the tax, and, what is more, her testimony may not be true. It is not apparent what object the defendant could have in falsely connecting her with the transaction. Her memory may be at fault with reference to the person who came to the house with her daughter and went with them to the sheriff's office; for Sheridan, who seems to be a disinterested and fair witness, says that some woman came to the house with the daughter on the occasion in question, and went with the parties when they left the house.

I was certainly impressed on the trial with the apparent fairness and candor of the defendant and her daughter as witnesses and it does not seem probable that the former would, even if she had allowed this property to go to sale for the paltry sum of this tax, have taken no...