Hendershott v. Sagsvold

[594] Opinion by Mr. Chief Justice Bean. 1. The statute authorizes any person claiming an interest in real property, not in the actual possession of another, to maintain a suit against another who claims an estate or interest therein adverse to him for the purpose of determining such conflicting or adverse interest: B. & C. Comp. § 516. A suit cannot be brought under this statute when the property is in the possession of another, because in such case there is a plain, adequate and complete remedy at law: Coolidge v. Forward, 11 Or. 118 (2 Pac. 292); Fdgar v. Edgar, 26 Or. 65 (37 Pac. 73); O'Hara v. Parker, 27 Or. 156 (39 Pac. 1004); Lovelady v. Burgess, 32 Or. 418 (52 Pac. 25); Silver v. Lee, 38 Or. 508 (63 Pac. 882). It is incumbent upon the plaintiff in such a suit to allege and prove, if controverted, that the property is not in possession of another; otherwise he will be relegated to his remedy at law: Moore v. Shofner, 40 Or. 488 (67 Pac. 511). 2. The plaintiff does not question this rule, but he insists that the present suit is not a technical suit to quiet title or determine an adverse claim to real property, but to redeem from a tax sale. There is no such proceeding known to our jurisdiction after issuance of a tax'deed. Real property which has been sold for taxes may be redeemed at any time before the execution of a tax deed, by payment to the tax collector, for the benefit of the holder of the tax certificate, the amount paid therefor, with interest, and all taxes, assessments, penalties, interest and costs accruing after the issuance of the certificate, with interest; and such redemption will operate as a cancellation of the sale and a release of all claim on the property by virtue of the tax certificate: B. & C. Comp. §§ 3124, 3125. But if redemption is not made within three years from the date of the sale, the tax collector is required to make out and deliver to the purchaser a deed for the land, which shall vest in him "all the right, title, interest and estate of the former owner”: B. & C. Comp. § 3127. The redemption must, therefore, be made, if at all, before the execution of the tax deed. If not so made, the title of the former owner is vested in the purchaser if the tax proceedings are valid. [595] 3. If the proceedings are not valid, the remedy of the owner is at law, unless he is in a situation to bring a suit to- quiet title or to determine an adverse claim therein: B. & C. Comp. § 516. The plaintiff cites Dolan v. Jones, 37 Wash. 176 (79 Pac. 640), as an authority to sustain this suit; but the tax laws of Washington are essentially different from ours. In that state property is not sold by the tax collector for delinquent taxes, but a certificate of delinquency is issued by him (Ballinger’s Ann. Codes & St. § 1749), which must be foreclosed in a court of competent jurisdiction (Ballinger’s Ann. Codes & St. § 1751), before the right of redemption is barred. In Dolan v. Jones there was an attempt to foreclose such a certificate, but the proceedings were void for want of jurisdiction. The court held that the right of redemption was not thereby barred, and a suit to redeem from a certificate of delinquency was not technically a suit to determine an adverse claim to real estate, and could be maintained by one not in possession. The case is therefore not an authority, under our method of procedure. It follows that the decree of the court below must be reversed, and one entered here dismissing the complaint. Reversed.