Noble v. Watrous

Mr. Justice McCamant delivered the opinion of the court. 1. It is settled law in this jurisdiction that tax titles are not favored. Except as the statute relieves him of the burden, the party asserting a tax title must show a compliance with the statute in each of the steps leading up to the execution of his deed: Rafferty v. Davis, 54 Or. 77 (102 Pac. 305); Ayers v. Lund, 49 Or. 303, 307 (89 Pac. 806, 124 Am. St. Rep. 1046). The defendant. Bacon, who 'is asserting the tax titles, relies on Section 3127, B. & C. Comp. This section of the Code, which was in force when the tax deed in favor of this defendant was executed, provides in part that a deed executed in conformity with its provisions “shall be prima facie evidence in all the courts of this state in all controversies relating to the rights of the purchaser, or his heirs or assigns, to the land thereby conveyed, of the following facts: (1) That the real property conveyed was subject to tax for the year or years stated in the deed; (2) that the taxes were not paid at any time before the sale; (3) that the real property conveyed has not been redeemed from the sale at the date of the deed; (4) that the property had been listed and assessed; (5) that the taxes were levied according to law; (6) that the property was duly advertised for sale; (7) that the property was sold for taxes as stated in the deed: — and it shall be conclusive evidence of the following facts: (1) That the manner in [422] which the listing, assessment, levy, notice, and sale were conducted was in all respects as the law directed; (2) that the grantee named in the deed was the purchaser; (3) that all the prerequisites of law were complied with by all the officers who had, or whose duty it was to have had, any part or action in any transaction relating to or affecting the title conveyed, or purporting to be conveyed, by the deed from the listing and valuation of the property up to the execution of the deed, both inclusive, and that all things whatsoever required by law to make a good and valid sale, and to vest the title in the purchaser were done, except in regard to the points named in this section wherein the deed shall be presumptive evidence only.” 2, 3. This legislation shifts the burden of proof, but does not operate otherwise to validate a tax title based on an insufficient assessment. In the absence of a valid assessment there can be no transfer of title through a tax sale. The assessment for the year 1895 describes the land as W.2 of N. E.4 Section 13 Township 3 N. Range 4 West. The assessment for 1896 uses the following description: W. ½ of N. E.4 Section 13 Township 3 N. Range 4 West. It has been repeatedly held that an exponent two is not effectual to designate a half-section and an exponent four will not designate a quarter-section: Power v. Bowdle, 3 N. D. 107 (54 N. W. 404, 44 Am. St. Rep. 511, 21 L. R. A. 328); Mate Finance Co. v. Mulberger, 16 N. D. 214 (112 N. W. 986, 125 Am. St. Rep. 650); Farmers’ Panic v. Martin, 29 N. D. 269 (150 N. W. 572, L. R. A. 1915D, 432); Black on Tax Titles (2 ed.), § 114; 1 Cooley on Taxation, 748, note; 37 Cyc. 1059, note. We have been cited to no authority to the contrary, nor have we been able to find any. This record contains no testimony to the effect that such exponents are customarily used to designate half and quarter sec [423] tions. It was expressly required by tbe statute in force when this assessment was levied that the assessment-roll should contain a description of each parcel of land to be taxed: Section 2770, Hill’s Ann. Laws. "We are therefore constrained to hold that these assessments are insufficient as the basis of the said defendant’s title. "We may add that there are other grounds on which these tax titles are attacked and we are by no means clear that they could be upheld even if the assessments were valid. 4. It appears from the record that Florence E. Watts, the former owner of the property, abandoned it more than twenty years ago and that plaintiff secured a deed from her for a nominal consideration immediately prior to the bringing of this suit. On the other hand, the defendant Bacon purchased from the defendant Watrous in the belief that the title was unquestioned and paid full value for the land. For nearly twenty years the defendants have paid the taxes on the property. While the evidence fails to show such a possession of .the property by the defendant Bacon as would satisfy the statute of limitations or defeat plaintiff’s right to maintain this suit, it does show the exercise of dominion over the property from time to time by the defendant Bacon and some improvement of the property by him without protest from anyone. This suit was brought March 20,1906; it was not tried until February 18, 1914. In view of the circumstances above recited, the defendant Bacon will recover costs in both courts. 5. In response to an order passed by the lower court plaintiff has paid into that court the moneys necessary to reimburse the defendants for taxes paid by them prior to the bringing of this suit. His relief should be conditioned on the further payment to the defendant [424] Bacon of the amounts paid by the latter for taxes on the property during the pendency of this suit, with lawful interest thereon. Subject to this condition, plaintiff is entitled to a decree quieting his title against the defendants. The decree of the lower court is reversed. Reversed. Rehearing Denied. Mr. Chiee Justice McBride, Mr. Justice Moore and Mr. Justice Bean concur.