Bagley v. Bloch

Mr. Justice Moore delivered the opinion of the court. In adverting to the stipulation in .this opinion reference will generally be made to the paragraphs thereof only. An examination of that part of paragraph 6 relating to the land of Percy H. Blyth will show that the annual burden undertaken to be imposed in the year 1909 upon “Tax lot No. 3” was $45.50, on account of which only $34.07 was paid, thereby leaving dne $11.42, to evidence which delinquent certificate No. 242 was issued. So far as can be determined from an inspection of this entry on the tax-roll the delinquency there noted related to and remained a charge upon the entire 33.88 acres of land. The description of a part of the plaintiff’s premises, as given in the certificate mentioned, is set forth in paragraph 9, where it will be observed the delinquency applies to 8.2 acres in “Tax lot No. 3,” the property of Percy H. Blyth in the section, township, and range hereinbefore specified; but in what part of that lot the particular area last mentioned is situated and upon which the tax was not paid, it is impossible to determine. In the suit to foreclose the alleged lien and in the decree rendered therein it will be remembered that the description of the premises, as set forth in paragraph 11, reads: “No. 242. Frac, lot 3, sec. 31, T. 1 N., R. 1 E., 8.2 acres.” — 615 — Paragraph 5 recites that Percy H. Blyth conveyed the east 8.2 acres of his realty to N. Q. Tanquery, from whom the plaintiff, by mesne conveyances, derived title to a part of his land, the metes and bounds of which are set forth in paragraph 2. An examination of the latter paragraph will show that from the northeast corner of the original Blyth tract the plaintiff’s line ran, “thence westerly and parallel to said half section line 911.3 feet to the Cornell Road. ’ ’ By platting the land from the boundary thus given and measuring the angle with a protractor it will be seen that the highway referred to runs from the northwest corner of the plaintiff’s premises south about 25 degrees 45 minutes east. Though the area of land conveyed by Blyth is correctly stated in paragraph 5, the tract there referred to is not “the east 8.2 acres,” for such division of his land would mean the western boundary of the plaintiff’s premises was indicated by a line running north and south, when, in fact, it is northwest and southeast. 1. The officer receiving the partial payment of the annual tax undertaken to be imposed upon Blyth’s entire real property neglected to note on the margin of the tax-roll the particular part of the land as to which the tax was paid, such as, “All part thereof situate west of the Cornell Road,” or other equivalent language; and by reason of such failure no foundation existed for the recovery of the remainder of the tax except as against Blyth’s originally described realty, and the delinquency certificate issued for only a part thereof is void. This conclusion, however, does not invalidate the remainder of the tax if it ever was a lien upon Blyth’s realty. 2. That part of plaintiff’s land, formerly owned by Melchior Kehrli and indicated in paragraph 6 as “ Tax lot No. 4,” on which the taxes for the year 1909, — 616 — amounting to $5.46, were not paid and by reason thereof delinquent certificate No. 243 was issued, stands on a different footing. In order properly to understand the assessment attempted to be made of that tract it becomes necessary to refer to clauses of the statute in force in the year 1909 regulating such matters: All property must be assessed for state and county purposes to the person who owned it at 1 o’clock a. m. on the 1st day of March for the taxes of the preceding year: Section 3586, L. O. L. The county assessor is required to return to the county clerk on or before the first Monday in October the assessment-roll containing a complete assessment of all taxable property entered therein, “including a full and precise description of the lands and lots owned by each person therein named * * which description shall correspond with the plan or plat of any town laid out or recorded, * * but no assessment shall be invalidated by a mistake in the name of the owner of the real property assessed * # if the property be correctly described; and provided further, that where the name of the true owner, or the owner of record, of any parcel of real property shall be given, such assessment shall not be held invalid on account of any irregularity in the description; provided, such description would be sufficient in a deed of conveyance from the owner; or on account of any description upon which, in a contract to convey, a court of equity would decree a conveyance to be made”: Section 3586, L. O. L. “The assessor of each county shall make a plat of the government surveys, and of all town plats within his county,- and shall note therein, or in a present ownership book or list, the owner of each tract of land, and of each town lot; and in counties where the assessor shall describe the land in the roll in the order of its location upon the grounds he shall keep a taxpayers’ index for each year, which shall be a public record subject to general inspection; and in such index — 617 — shall be entered the name of every taxpayer against whom any tax shall be charged in the county, in alphabetical order, * * and shall refer to the pages and lines of the roll where the assessment of such taxpayer may be found”: Section 3588, L. O. L. “The assessor shall set down in the assessment-roll, in separate columns, and according to the best information he can obtain: “1. The names of all taxable persons in his county assessable by him. “2. A description of each tract or parcel of land to be taxed, specifying under separate heads the township, range, and section in which the land lies, in tracts not exceeding a quarter section according to the government survey, except where the same are described by metes and bounds; or, if divided into lots and blocks, then the number of the lot and block”: Section 3593, L. 0. L. “When lots are situated in any city, village, or town a plat of which shall have been recorded, the city, village, or town in which ■ the same are situated shall be specified in the assessment roll”: Section 3594, L. 0. L. “If the land assessed be less or other than a subdivision according to the United States survey, unless the same be divided into lots and blocks so that it can be definitely described, it shall be described by giving the boundaries thereof, or by reference to a description thereof by book and page of any public record of the county where the same may be found, or in such other manner as to make the description certain”: Section 3597, L. 0. L. “It shall be sufficient to describe lands in all proceedings relative to the assessing, * * or selling the same for taxes, by initial letters, abbreviations, figures, fractions, and exponents to designate the township, range, section, part of section, distance, course, bearing, and direction, and also the number of lots and blocks or part thereof”: Section 3598, L. 0. L. “In all proceedings for the assessment, levy, or collection of taxes, or sale of property, or other proceedings for collection of delinquent taxes, said designa — 618 — tion. as provided in Sections 3597 and 3598 hereof shall be a sufficient description, and it shall not be necessary to enter in such proceedings a description of such tract by metes and bounds”: Section 3599, L. O. L. In West Portland Park v. Kelly, 29 Or. 412 (45 Pac. 901), it was held that “block books,” containing descriptions of land and kept by the county assessor for convenience in performing his official duties, were not public records, and entries so made therein were only private memoranda. At page 419 of the opinion in that case it is said: “Had the block books or other documents kept by the assessor been public records, so that the entries made therein would have constituted notice to all persons whose property might be affected thereby, the plaintiff could have relied upon his inspection of them; but such books and documents, though convenient for and valuable aids to the officer, are no part of the assessment roll, and convey no notice to the taxpayer of their contents.” In order to correct the defect thus adverted to Section 3588, L. O. L., was enacted, which required the assessor of each county to make a plat of the government surveys and of town plats within his county and to note therein, or in a present ownership book or list, the owner of each tract of land and of each town lot; and made such plats public records subject to general inspection. A casual perusal of that section of the code would seem to limit the entries which might legally be made in the public records specified to lands indicated by plats of the government surveys and to lots and blocks designated on recorded city, village, and town plats. "When, however, that part of the statute is read in connection with Sections 3597 and 3599, L. O. L., which should be done in order to ascertain and determine the entire scope and effect of the law gov — 619 — eruing assessment for taxation, it is believed the description of the plaintiff’s real property as given in the books entitled, “Index to Taxpayers for the Year 1909,” “Division Book,” “1908-1911 Block Book Acreage North,” in which volumes reference is made to the pages of the roll where the assessment of the taxpayer may be found, makes such books public records within the meaning of the statute, thereby rendering the description sufficiently certain for a deed of conveyance of land, or to authorize a court of equity to decree a specific performance of a contract to cohvey real property in a suit instituted for that purpose, as indicated in Section 3586 of the code. 3. This deduction is reached by invoking the maxim, Id cerium est quod cerium reddi potest; and when in the description of land contained in a deed reference is made to a public record where an adequate delineation of the realty may be found, resort may be had thereto in order to identify the premises: House v. Jackson, 24 Or. 89 (32 Pac. 1027); Lewis v. Beeman, 46 Or. 311 (80 Pac. 417); St. Dennis v. Harras, 55 Or. 379 (105 Pac. 246, 106 Pac. 789). 4, 5. It will be remembered that no summons or other process was personally served upon the plaintiff in the suit to foreclose the delinquency certificates, though he then resided and now lives at Hillsboro, Oregon. Notice of such proceedings, however, was published by order of the court for seven consecutive insertions in a newspaper of general circulation printed in Multnomah County, Oregon. The statute declares that all taxes lawfully imposed upon real property shall be a lien thereon from the day on which the warrant is issued commanding the collection of such burden: Section 3684, L. O. L. At any time after the expiration of six — 620 — months from the failure of an owner of real property to pay the taxes thereon as they mature, it is incumbent upon the tax collector, when so demanded by any person who offers to pay such taxes, penalty, and interest, to issue to him a delinquency certificate against the land described therein: Section 3693, L. O. L. Such written evidence has the force and effect of a judgment against the premises and an execution and sale thereof: Section 3694, subd. 4, L. 0. L. At any time after three years and prior to the expiration of six years from the delinquency the holder of the certificate thereof may cause a summons to be served upon the owner of the real property, notifying him that application will be made to the Circuit Court of the county in which the land is situated to foreclose the tax lien thereon: Section 3695, L. O. L. “Summons shall be served and returned in the same manner as summons in a civil action is served in the Circuit Court”: Section 3696, L. 0. L. It will be kept in mind that paragraph 12 shows the plaintiff was and is a resident of Hillsboro, Oregon, but that in the suit to foreclose the tax liens evidenced by the delinquent certificates the summons was attempted to be served upon him only by publication. The stipulations fail to disclose why such constructive service of process was resorted to, or to show what effort, if any, was made to ascertain the residence of the plaintiff. The method of securing jurisdiction of the person by a constructive service of process is not in conformity with the principles of the common law, but is given by statute, which enactment being in derogation of the ancient rule is to be construed strictly: Heatherly v. Hadley, 4 Or. 1; Odell v. Campbell, 9 Or. — 621 — 298; Willamette Real Estate Co. v. Hendrix, 28 Or. 485 (42 Pac. 514, 52 Am. St. Rep. 800); Mertens v. Northern State Bank, 68 Or. 273 (135 Pac. 885). In Northcut v. Lemery, 8 Or. 316, 322, Mr. Chief Justice Kelly, in referring to a decree given hy a tribunal of superior power to hear and determine causes of the class and kind there involved, remarks: “The court which rendered it, although one of general jurisdiction, was then exercising a special power conferred upon it by statute, and not according to the course of the common law. And in such cases, even a court of general jurisdiction must strictly comply with the requirements of the statute in its proceedings, and this compliance must affirmatively appear from tibe record itself; and unless it does so appear, no presumption will be indulged to sustain the validity of its judgments or decrees. ’1 To the same effect see Odell v. Campbell, 9 Or. 298; Furgeson v. Jones, 17 Or. 204 (20 Pac. 842, 11 Am. St. Rep. 808, 3 L. R. A. 620); Willamette Real Estate Co. v. Hendrix, 28 Or. 485 (42 Pac. 514, 52 Am. St. Rep. 800); Knapp v. Wallace, 50 Or. 348 (92 Pac. 1054, 126 Am. St. Rep. 742); Fishburn v. Londershausen, 50 Or. 363 (92 Pac. 1060, 15 Ann. Cas. 975, 14 L. R. A. (N. S.) 1234); Smith v. Whiting, 55 Or. 393 (106 Pac. 791); De Vall v. De Vall, 57 Or. 128 (109 Pac. 755, 110 Pac. 705). The stipulation not having assigned any reason why the summons was attempted to be served by publication did not state facts sufficient to uphold the decree rendered. 6, 7. This suit is tantamount to a bill to redeem, in order to obtain which relief under the statute now in force, the tax, interest, penalty, etc., should have been tendered as a condition precedent to granting such redress : Section 3725, L. O. L. To entitle a party to — 622 — equitable relief be should be required to do equity. Every owner of land owes a common legal duty to the public to pay the taxes annually levied upon his realty in order to maintain the state government, to uphold the county administration, and to support the general schools; and such obligation i*equires him to pay, at least, such part of those burdens as should have been equally and ratably imposed upon his realty. The plaintiff’s counsel, however, invoking the rule adopted in Hughes v. Linn County, 37 Or. 111 (60 Pac. 843), maintain that it was unnecessary for their client, as the present owner of the land, to comply with the requirements of the section of the statute last referred to by tendering with his complaint any part of the taxes that were levied against the premises of his predecessors in interest as a condition precedent to the right to maintain this suit. That decision was rendered April 16, 1900, and prior' to the enactment of the statute declaring taxes to be a lien upon real property against which they were levied: Gen. Laws Or. 1901, p. 248, § 17.- It was thereafter held in Title Trust Co. v. Aylsworth, 40 Or. 20 (66 Pac. 276), that where an assessment of lands sold for taxes was void, the owner of the realty was under no obligation to tender, as required by law, any sum for the benefit of the holder of the tax title based on such assessment before being-heard to contest such title. The same conclusion was reached in Moores v. Clackamas County, 40 Or. 536 (67 Pac. 662). These cases proceed upon' the theory that if the attempt to levy a tax upon a particular piece of real property is ineffectual for that purpose, the burden thus undertaken to be imposed is void; and that in a suit to remove the cloud so cast upon the title to the land it is unnecessary to comply with the requirements — 623 — of the statute by tendering any part of the tax. This course of procedure permits counsel for the plaintiff to place his own construction in advance of the trial upon the alleged invalidity of the tax, and, in effect, amounts to a practical repeal of the section of the statute referred to, for if the rule is to obtain a suit in the nature of a bill to remove a cloud from the title to realty will invariably be resorted to instead of a suit to enjoin the collection of a tax. In Welch v. Clatsop County, 24 Or. 452 (33 Pac. 934), which case was decided before taxes were declared to be a lien upon realty (Gen. Laws Or. 1901, p. 248, § 17), it'was ruled that in a suit to enjoin the collection of taxes, a court of equity would not interfere in the absence of a tender by the plaintiff of the amount of the burden, unless the tax was undertaken to be assessed against property that was exempt therefrom, or that the burden was imposed by persons without authority, or that they had proceeded fraudulently. To the same effect see: Alliance Trust Co. v. Multnomah County, 38 Or. 433 (63 Pac. 498); Lapp v. Marshfield, 72 Or. 573 (144 Pac. 83). At page 578 of the opinion in the latter case Mr. Chief Justice Mo-Bride announces the correct legal principle when he says: “The case of Welch v. Clatsop County, 24 Or. 452 (33 Pac. 934), lays down a salutary rule to be applied to cases of this kind by requiring the party claiming relief against an illegal or irregular tax to tender what is fairly and equitably due before equity will relieve him. ’ ’ In all suits hereafter instituted for equitable relief from the imposition of a general tax upon specific real property the rule last referred to will be applied, and if it be finally determined that any part of the money — 624 — so tendered should he returned to the plaintiff, a decree to that effect can be made. By reason of the failure personally to serve the summons upon the plaintiff or to set forth the reason for not having done so in the suit to foreclose the delinquency certificate as to tax lot No. 4, and in consequence of issuing a deficiency certificate for only, a part of tax lot No. 3 when the delinquency related to the whole thereof, the decree of foreclosure rendered in that suit is set aside, the decree given therein is reversed, and the cause is remanded with direction to the trial court that if within 60 days from the entry therein of our mandate the plaintiff deposit in the lower court the entire taxes now asserted against his land, the penalties resulting from the failure to pay such legal obligations, and the interest on such taxes, the relief prayed for in the suit will be granted; otherwise such burdens will remain liens upon the premises, and this suit will be dismissed. Reversed and Remanded.