Rae v. Morgan

ROSSMAN, J. There are various assignments of error. We shall not pause at this point to enumerate them, but shall state each separate assignment as we dispose of it. Session Laws, 1923, Chapter 276, provides that in counties having a population of less than 50,000, the sheriff, with the assistance of the District Attorney, shall foreclose in the name of the county certificates of delinquency upon property outstanding in the name of the county; that in foreclosure proceedings, the summons may be served by publication. “ * * The name of the person or persons appearing on the latest tax roll in the hands of the sheriff for collection at the date of the first publication of such summons or notice as the owner or owners of said property shall, for the purpose of this section and all foreclosures by counties, be considered and treated as the owner or owners of said property and said proceedings shall be and be deemed and considered a proceeding in rem against the property itself; and if upon said roll it appears that the owner or owners of said property are unknown, then said property shall be proceeded against as belonging to an unknown owner or owners, as the case may be, and all persons owning or claiming to own or having *649 or claiming to have an interest therein, are hereby required to take notice of said proceedings, and of any and all steps thereunder. The publication of the summons or notice required by this section shall be made by the sheriff in some newspaper printed, published and in general circulation in the county, to be designated by the county court; * * ” Section 4376, Or. L., provides: “ * * in every such action, suit or proceeding, whether before or after the deed, the party claiming to be the owner as against the party claiming under such tax certificate or tax sale shall tender with the first pleading in such action, suit, or proceeding, and pay into court at the time of filing the same, the amount of the purchase price for which such certificate was issued or lands sold, as the case may be, together with all taxes or assessments which shall have been paid by the purchaser after the issuance of the certificate of sale, together with interst thereon at the rate of twelve per cent per annum from the respective times of the payment of such sums up to the time of the filing of such pleading, to be paid to such purchaser, his heirs or assigns, in case the right or title of such purchaser shall fail in such suit, action or proceeding, * * ” It will be helpful and expedite our consideration of the errors assigned if we determine at the outset the nature of the proceeding provided by statute for the foreclosure of delinquent tax certificates. Addressing ourselves to this inquiry it will be observed that while an individual must be named as defendant, it is not essential that he should be the actual owner of the property; the proper defendant may be one who in fact is possessed of no financial interest in the property. It is sufficient if he is “ the person or persons appearing on the latest tax roll in the hands of *650 the sheriff for collection at the date of the first publication of such summons.” The real nature of the proceedings, as is stated in the statute, is one in rem; the courts have so held: Coy v. Title Guarantee & Trust Co., 257 Fed. 571, construing our statutes. Statutes designating the proceeding as one in rem have been quite generally approved by the courts: 26 R. C. L., Taxation, § 364. As will be observed from a portion of our statutes previously quoted, one who attacks the validity of the foreclosure proceeding must tender into court the amount of the purchase price for which the certificate was issued, together with all taxes or assessments since paid by the purchaser and interest accumulated thereon. The purpose of the tender is not to afford the defaulted owner another opportunity to reclaim his property by redeeming from the foreclosure, but it compels him to do equity by offering to pay the accumulated taxes and assessments before he undertakes to avail himself of some irregularity in the foreclosure proceedings. See Jory v. Palace Dry Goods Co., 30 Or. 196 (46 Pac. 786). In this case the endeavor to defeat the foreclosure proceedings is based upon the contentions that the proceedings lacked validity in the following particulars: first, that the sheriff proceeded with the foreclosure without the assistance of the District Attorney; second, that the summons was published in the “Klamath News,” the first publication being on November 13, 1924; that this newspaper did not publish its first issue until November 13, 1923, from which circumstances the defendants contend that the “Klamath News” had not been in publication for one year prior to the publication of the summons; third, that the sheriff failed to make a return to the court showing that its order *651 directing the sale had been complied with, and failed to set forth the manner in which he executed the order; and fourth, that the sheriff failed to offer the least quantity of the lot, but sold the entire lot for the outstanding taxes when a smaller quantity would have secured a bid for the outstanding taxes. If the foreclosure proceedings were invalid, the plaintiff must be content to take the sum tendered into court which we understand is sufficient to reimburse him for all taxes he paid, together with interest thereon. But if the proceedings were regular, his title is valid and the defendants have lost their interest in the premises. In proceeding with our inquiry, we must bear in mind the prima facie effect given to the deed set forth in Section 4362, Or. L. “Deeds executed by the sheriff as aforesaid shall be prima facie evidence in all controversies and suits in relation to the right of the purchaser of the real estate, his heirs and assigns, of the following facts:— “1. That the real estate conveyed was subject to taxation at the time the same was assessed in the time and manner required by law. “2. That the taxes or assessments were regularly levied, and were not paid at any time before the issuance of the deed. “3. That the real estate conveyed had not been redeemed from the sale at the date of the deed. “4. That the real estate was duly sold for taxes, assessments, penalties, and costs as stated in the deed. ‘ ‘ 5. That the grantee in the deed was the purchaser or assignee of the purchaser. “6. That the sale and all antecedent proceedings were conducted in the manner required by law.” It is competent for the legislature to prescribe the foregoing prima facie effect to the sheriff’s deed: Marx v. Nanthorn, 148 U. S. 180. *652 The foregoing being the situation before ns, we shall now proceed with the disposition of the various assignments of error. The lower court permitted defendant to develop the fact that he had no actual notice of the delinquent tax foreclosure proceedings, and that the plaintiff did not notify him before bringing this ejectment action. The latter was clearly unnecessary and it follows from the fact that the tax foreclosure proceeding was an action in rem, that actual notice was unnecessary. An assignment of error is grounded upon the fact that the lower court denied the plaintiff permission to inquire of the sheriff whether his office had properly conducted the steps preliminary to the foreclosure suit. His answer to some questions preceding this one relegates this alleged error to a moot question, because his answers to the foregoing question disclosed that he had no information concerning the foreclosure proceedings. He assumed that the entries in his records correctly set forth what took place, but since he took no personal part in any of the transactions, he could not amplify what the record recited. The ruling upon which error is assigned was not predicated upon a question seeking to develop the practice of his office so as to sustain the entries in the records, nor was the witness asked to refresh his recollection from the entries. Such being the situation, no error was committed. An assignment of error is based upon the ruling of the court which permitted the defendant John D. Morgan to testify to the value of the property involved in this action. The lot was 50 by 140 feet in size; each end fronted on a street; upon one half of the lot stood a six-room dwelling-house, the other half, being the easterly portion, was vacant. Some *653 evidence showed this half was worth about $700. Under the statutes of this state the sheriff is required to dispose of the least quantity of the lot from the easterly portion of it, that will bring the amount of the outstanding tax. This court in Smith v. Dwight, 80 Or. 1 (148 Pac. 477, 156 Pac. 573), has held that the sale of an entire quarter-section of land valued at $7,000 for tax liens totaling only $110 overcomes the prima facie showing of regularity established by the tax deed. The evidence supplied by the witness Morgan was to the effect that the property was worth from $3,500 to $4,000; the outstanding taxes were approximately $400. No objection was made to the qualification of the witness; we believe the evidence was admissible. What is said in regard to the testimony of the defendant Morgan has equal application to the exception in regard to the testimony of the witness Myers. After the court had admitted this evidence because it had a tendency to affect adversely the regularity of the foreclosure proceedings, the plaintiff sought to substantiate the procedings which preceded his title by showing that in fact the easterly portion of the lot had first been offered for sale. The plaintiff undertook to establish this fact by offering his own testimony to that effect, and also that of Mr. W. A. Wiest, an attorney who was also present at the trial. The court sustained defendants’ objection on the theory that this information should come from the records of the sheriff’s office and not by the testimony of those present. It is true that Section 4358, Or. L., makes the entries in the books and records of the sheriff’s office prima facie evidence to prove the issuance of a certificate, or the sale of the land. Nevertheless Section 4354, Or. L., provides: “No return *654 or confirmation of any sale is required or necessary. ’ ’ The sheriff’s deed contains this recital: “The said Thomas A. Rae, being the best bidder at said sale and the said tract being the least quantity bid, and that being the best bid offered at said sale”; the evidence quite clearly showed that the sheriff’s office had no records, books or entries concerning this matter, outside of the recital in the deed just quoted. Under the circumstances the evidence offered by Rae and Wiest, who were present and appear to have a recollection in regard to the matter, was admissible. The defendant contends that public policy demands that the sheriff should keep an official record setting forth the details of his sales. Such records without doubt would be very serviceable in ensuing litigation, but it is difficult to understand why the results of the sheriff’s laxness in this respect, if any, should fall upon innocent third parties. Nevertheless, it will be observed that the statute itself, which fixes the public policy of the state, requires no return; furthermore, we have a memorial of the sheriff’s acts in the deed wherein is set forth over the official’s signature that he did not offer the property as an entirety, but in parts. Such being the situation, the testimony of the plaintiff and of Wiest was clearly admissible. As will be observed from the provisions of our statutes previously quoted, in counties having a population of less than 50,000 foreclosure proceedings are conducted by the sheriff with the assistance of the District Attorney. In the foreclosure of the certificate of delinquency, the complaint was signed “W. A. Wiest, special counsel for Klamath County, Oregon, attorney for plaintiff.” It was the contention of the defendants that Mr. Wiest was not a Deputy District Attorney, and that hence the proceed *655 ings were invalid. We fail to understand how this result could follow, even if the premise were true: State v. O’Brien, 35 Mont. 482 (90 Pac. 514, 10 Ann. Cas. 1006). It is possible that the sheriff and district attorney might be subject to discipline for not having complied with the laws of the state, but if the proceedings were conducted in obedience to our statutes, it is hard to understand why no validity should attach to the court’s decree because Mr. Wiest, in his capacity of “special counsel” appeared during the course of the suit in lieu of Mr. Wiest, Deputy District Attorney. It is not the title of the office that is important, but it is the observance of the statute so far as it concerns the nature of the proceedings and notice to those involved. No one contended that the District Attorney disapproved of the delinquent tax foreclosure proceedings. There is no evidence that the District Attorney failed to assist. Mr. Wiest undertook to testify that all that he did met with the approval of the District Attorney and was about to state how he obtained his employment. We believe that this evidence was clearly admissible. Its effect would establish whether he was a Deputy District Attorney or not, and also whether in fact the District Attorney did assist in the proceedings through offering advice or through participating in the handling of the matter. There is no necessity that the order employing the deputy in the District Attorney’s office should be in writing: 18 C. J. 1338. Under the statutes of this state, a Deputy District Attorney cannot be employed without the approval of the County Court; this latter body also fixes his compensation. The inquiry which the plaintiff proposed to make was permissible. It is true that the court delivered itself of some remarks which would *656 indicate that the entire subject matter of the inquiry was immaterial. Nevertheless the matter was handled in such a way that the jury very likely felt that this constituted a proper field of inquiry for themselves. The plaintiff requested the court to instruct the jury that Mr. Wiest could act for the county; this requested instruction was denied. We believe that error was committed in the foregoing premise. As we have seen from the foregoing excerpt of the 1923 Session Laws previously quoted, the publication of the summons shall be made by the sheriff in some newspaper to be designated by the County Court. Section 58, Or. L., in defining what is meant by the word “newspaper,” contains among other elements the necessity “that such newspaper shall have been established and regularly and uninterruptedly published in such county at least once a week during a period of at least twelve consecutive months immediately preceding the first publication of such notice, summons, * * .” The first issue of “Klamath News” appeared November 13, 1923. The first publication of the summons in the tax certificate foreclosure proceeding's appeared November 13, 1924. If one was born on November 13, 1923, at the close of the day of November 12, 1924, he would be one year old and the second year of his life would start with the beginning of November 13, 1924. From this it is clear that when the notice was inserted in the “Klamath News” it was a publication qualified under the statutes to publish the notice. The instructions given by the court to the jury were not in harmony with the foregoing conclusion; we believe that it erred in so doing. On account of the errors just mentioned it follows that the judgment of the lower court must be reversed, *657 and the case remanded for proceedings not ont of harmony with these conclusions. Other assignments of error we deem it unnecessary to mention because they are not likely to occur upon a new trial. For the petition, Mr. B. C. Grosebeck and Mr. Henry E. Perkins. Contra, Messrs. Butenic & Yaden. Reversed. Rand, C. J., and Coshow and McBride, JJ., concur.