Buchanan v. Tennant

Mr. Justice Slater delivered the opinion of the court. 1. Plaintiff and his counsel have earnestly and ably urged upon us that the trial court erred, both upon the facts and the law. But, assuming that the law is as he contends, and that he is entitled to the remedy invoked when he has shown by competent testimony that he has fully performed the terms of the contract, yet we are compelled by the record to find that he has failed to make his case. He testifies that, when the contract was made, the land had been sold for delinquent taxes, and was bid in by the county five different times prior to the sale to Baker and Childs. These sales • occurred as follows: January 2, 1895, for the taxes of 1893; December 17, 1895, for the taxes of 1894; February 17, 1900, for the taxes of 1898; January 26, 1901, for the taxes of 1899; and February 24, 1902, for the taxes of 1900. The sale to Baker and Childs took place on January 5, 1903, for the taxes of 1901. It was the record of these sales that plaintiff says he was to cause to be canceled by suit or otherwise, and he contends that it was not until after his suit had been brought that the defendant’s agent unwarrantedly interfered, made the agreement with Baker and Childs, and notified him not to take any further proceedings, because of the claim that the matter had been settled. He also contends that defendant’s agreement with those two persons did not remove the entire cause of suit, but left the cause against the county unsettled and still [120] pending, and further testifies that afterwards, on October 26, 1906, he, as attorney for the defendant, went to the county clerk’s office, and paid to that' officer the sum of $49.29 in full for the delinquent taxes due Douglas County for the five years for which the land had been sold, and he exhibited a written receipt of the county clerk to that effect. At the time of such payment that officer also delivered to plaintiff the sheriff’s certificates of sale, which are in evidence, but they are unaccompanied by any written transfer or release, by indorsement or otherwise, of the county’s interest in the land by virtue of these sales. After making this payment, plaintiff, considering that the defendant’s record title to the land had been freed of all adverse claims, dismissed the suit, as he considered it of no further utility. The defendant seems to rely upon the claim that, when the premises were subsequently sold to Baker and Childs for the taxes assessed to her for the year 1901, the county in some manner, lost all its interest acquired by the previous sales, and such rights became vested in the new purchasers, and that, when she received their deeds of conveyance, all tax titles had become centered in her. But the theories of both parties are at fault. When the county bid in this land, it acquired “all the estate or interest therein of the owners” (Section 3122, B. & C. Comp.), subject to redemption within the time provided by law at the time of the sale, the same as if it had been purchased by individuals; and, until the absolute title had been divested and had passed to the county, by virtue of the act of 1901 (Section 3182, B. & C. Comp.), such land was assessable to the owner: Berger v. Multnomah County, 45 Or. 402 (78 Pac. 224.) 2. Baker and Childs by purchasing at a subsequent sheriff’s sale for tax levied and assessed prior to July 1, 1901, obtained only such title as the defendant had at the time of the assessment and levy (45 Or. 407: 78 Pac. [121] 224) ; that is, a right to redeem from the county. The right of the county, therefore, was the dominant and superior right, not only in respect to the claim of the defendant, but of Baker and Childs as well. 3. By Section 3132, B. & C. Comp., the land was redeemable at any time before July 1, 1901, for sales made prior thereto, but, if not redeemed within that time, then the title to the land vested in the county without issuance of deed or other formality, if the assessment, levy, and sale were valid. No redemption was made by defendant, or by any one in her behalf, or by Baker and Childs, before that date, and it has not been suggested by any one who is a party to this suit that any of these tax sales were for any reason void. We must assume, therefore, that at least an apparent record title passed to the county on July 1, 1901. Plaintiff seems to think that by paying to the county clerk on October 26, 1906, as defend^ ant’s agent, the aggregate amount of these delinquent taxes, taking his receipt and receiving from him the several certificates of sale, which had been issued to the county by the sheriff, he thereby recovered the title, or redeemed the property, and removed from the record any apparent cloud cast upon the title by the record of these sales, for he testifies that he thereupon dismissed the pending suit against the county, without taking any decree, considering that it could serve no further purpose. But no authority arising either from statute or from any order of the county court is shown to be possessed by the clerk to thus deal with the property of the county, and,, if some authority did exist, his act of handing over the sheriff’s certificates could not, in any event, transfer or release a title in realty, which by the plain words of the statute had become vested and was absolute. It would thus appear, not only that plaintiff has not fully performed the terms of his contract,' without which he can not recover, but also that the defendant, contrary to her [122] and her agent’s formerly self-conceived notions, had, and still has, much need of the services of the plaintiff, or of some other attorney, to perfect the title to the premises. For these reasons, the decree must be affirmed. Affirmed.