MARX 11. HANTHORN.
579
'is not estopped frorildenyingthe validity of anailverse title purchased in order to secure his peace. It to purchase in a void adverse claim than to litigate it. Any is at liberty to buy his peace without prejudicing his own title already held. Cannon v. Stockrrum, 36 Cal. , Upon the views expresSed, there must be findings and a judgment for defendant, on the grounds indicated, in this,opinion, and it is so ordered.
. ARx M
11. HANTHORN.
(C'ircuit dour" D. Oregon. April 20,1887.) 1.TAXA:TION-SUlll-DEED-SHERIF'F.
a
The shedlf in office is the proper person to mak,e a deed to property Bold for delinquent taxes, on the failure of the owner to redeem the same.
.A deputy-sheriff may execute a deed to property sold for delinquent taxe., and when he does do so he should execute and acknowledge the same for and in the name of his principal. . ' a. SAMlll-RltGULARITY OF SALE-DEED AS LAw. . may make a tax deed conclusive evidence of the regUlarity of the. prIOr proceedings, 80. far as they rest in the discretion of the. legisl!!:ture. and an omission to perform them may subsequently be cured or excused by it; but it cannot make such deed more than prima facie evidence of the perforn:iance of any act, or of the existence of any fact, ,essential to the validityof the transaction; and to do so would .be to deprive the party of his prop· erty without due process 'Of law. contrary to the fourteenth amendment· Reas()nable notice of thesiLle of real property for delinquent taxes is an essential part of the proceeding to deprive the owner of his title thereto. and the legislature cannot make the tax deed conclusive evidence of the fact that the same 'was duly given; and the name of the owner, when known and en· teredon the assessment roll, is a material part of such notice. Where a person purchases real propellty at a sale for delinquent taxes, nnder a statute which makes the tax deed conclusive evidence of the regularity of the prior proceedings, with certain exceptions, the legislature, as to any fact or matter of which it had the power to make the deed conclusive evidence, oannot thereafter make the same only prima facie evidence thereof, without impairing the obligation of the contract of the state with the purchaser of 'the property. CASE.
SAMlll-DEPUTY-SHERIFF·
.. SAMm-N:OTICE OF SUE:""NAMlll OF OWNER.
.'
I.
SAMlll--CONTRACT OF STATE-'IHPAIRING.
6.
Lots a and 4, in block E, in Portland, were assessed for taxation to the owner. Ida F. Hanthorn, and so transcribed. onto the tax-roll, on which the taxes then levied on the property were extended. The taxes were returned delinquent, aud the property entered on the delinqnent tax-roll as that of Ida J. Hawthorn, and in due time so advertised and sold, and a certificate of the sale given to the purchaser. The property not bein/;t redeemed at the expiration of two years, the sheriff made a deed thereof to .the purchaser, in whillh the t>rior proceedings were represented as having been had and done conCerJ;llDg the property of Ida F. Hanthorn. The grantee of the purchaser afterwards brought an action against Hanthorn to recover the possession of the premises. Held that the defendant, notwithstanding the statute in force at the date of the sale and deed, making the latter Conclusive evidence of the
580
FEDERAL
(Syllabu8 by the Oourt.)
regUlari.tyOf t.he prior proceeding, as to the notice of,the sale, might show that the property W!j.S advel;tised,anq, sold as that of Hawthorn instead of thorn. and thereby avoi\lthe deed;
At Law. Action to recover possession of real property. W.Scott lJeebe and JohnW. WhaUey; for plaintiff. George Durham and F. A.,E; Starr, for defendant. DEADY, J. This action is brought by the plaintiff, a subject of the emperor of Germany, against the defendant, a citizen of Oregon, to recover the possession of lots 3 and 4, in block E, in the town of Portland. The action was originally brougl1,t against B.Campbell, the party in possession, who having answered thilt he was in possession as the tenant of Ida J. Hanthorn, the latter was substituted for him as defendant. It is alleged in the complaint thit the Plairitiff is the owner of the premises, and that the defendant wrongfully withholds from him the possession thereof.. 1The :Il-l1swer contains a denial of. the allegations of the complaint, and a ,plea of title in the defendant with a right to the possession, and the replication denies the plea. The defendant claims the premises August28 j 'lS78;''fromW. W. Chapman and Margaret ,under F., his wite,'the latter being the 'p'atentee of the United States, under the of land, including saidbl()ck E. The donation act 00850, of a SearsbfJuly 29th, plaintiff claims under two deeds j one from and lhe'other frol1l, Sheriff Jordan of July 30, 1886, each purporting to be mad'e lnpnrsuance of a. sale of tlie property/or taxes by the former on June 80",1884,. , By a stipulation filed in thecauseitis admitted that the was the 'owner iIi fee of the prernisesat. the time of the assessment and sale of the same for taxes, and that she is still such owner, unless, such sale and the conveyance thereon' had the effect to pass the title to the purchaser thereat; and that the property worth $6,000.' 'J;'hecase was tried'bY,the court without the interyention of a jury,and the trial the proceedings constituting the assessment, levy of taxes, and the sale of the property, and the conveyance thereon, were received tin:e"'idence, td,objection for want of competency and ttiateriaIity" " . ' . " From these it appears that on August 27, 1883, the premises were listed by the assessor of ¥ultnon:iah county on the assessment roll thereof, for tllxatil:in in that year, as the property of Ida F. Han1;hOl;n, and valued at $2,200; that on October 17, 1883, the entry on the assessment roll concerning said preperty· was transcribed onto the tax-roll of said 'Jounty by the clerk thereof, ahd on the same day the taxes for school, purposes, amminting to $34.32, were levied on said by the county court of said property. and extended on county,arid't.i'ie shE!riffthereof:iJorp.manded, by a. warrant indorsed thereQn, 13igned by the county clerk and sealed with the seal of said court; to coHeet said. taxes by' demanding payment of the same, and making s,lI1e 'tif the gqods and chattels.Of the person charged therewith; that the sheriff, George C., Sears; to whom said warrant was directed,
on
MARX V. HANTHORN.
581
having returned that the tax levied on said property Was unpaid and delinquent, the latter was on April 22, 1884, entered on the delinquent tax-roll of said county by the clerk thereof, as the property of Ida F. Hawthol'n j and a warrant indorsed thereon, signed hy said clerk and sealed with the seal of said county, commanding said sheriff to levy on the goods of the delinquent tax-payer, and, in default thereof. on the real property mentioned in said taX-list, or sufficient thereof to satisfy said taxes, charges, and expenses; that afterwards said sheriff returned that he received said delinquent tax-list and warrant on April 22, 1884, .and, in' pursuance thereof, and in default of personal property, he levied on said lots three and four; and advertised and sold the same on June 18, 1884" as the property of IdaF. Hawthorn, to J. E. Bennett, for $37.51, the amount of said delinquent tax and costs, and expenses thereon; that 011 July 29, 1886, George C. Sears, as ex-sheriff of said Multnomah county, executed and delivered to said Bennett a deed for the premises, in which the proceedings concerning the assessment of said property, the levy ofthe taxes thereon, the non-payment and delinquency of the saIlie, and the sale of the property therefor, were substantially recited, except that it does not thereby appear that the premises were entered on the delinquent tax-list, or advertised or sold as the property of Ida F. Hawthorn, but as that of IdaF. Hanthorn; that on July 30, 1886, Thomas A. Jordan, as sheriff of said Multnomah county, by A. W. Witherell, deputy, executed and delivered to said Bennett a deed of the premises, containing the same recitals as the one from Sears. Each deed Was acknowledged on the day of its execution, and afterwards admitted to record. The original Jordan deed was put in evidence, and also a certified copy of the record. .But the execution of the original was not otherwise proved, and it is contended that the acknowledgment is not legal, and therefore it cannot be read in evidence without direct proof of its execution. . On July 31, 1886. Bennett and his wife, Alvira F., in consideration of$500, as recited in the deed, quitclaimed the premises to the plaintiff. The deed by Sears, the ex-sheriff, is unauthorized and void. ' When he made the sale, and gave the certificate thereof to the purchaser, and returned his proceedings in that respect to the clerk of the county court, the process under which he acted was fully executed. A sheriff who sells real property on a warrant for the collection of delinquent taxes is not thereby authorized or required to make a forn1al conveyance thereof to the purChaser, but only to deliver him a certificate of the fact of !:'Iuch sale. If the land is redeemed within two thereaftyr, the effect of the sale ceases, and no further official action is required in the premises. But, in case 110 redemption is had within that time, the statute (Laws 01'.767, § 90) directs that "the sheriff" shall execute a conveyance to the purchaser or his assigns. This command is addressed to the "sheriff" then being, and not to any ex-sheriff who may have made the sale two years before. The conveyance itself is in the nat.ure of a further assurance given by the state ill evidence of the fact that a sale of propert,y which Was only conditional when made has, by the lapse of timeari,{
682 the omission of the former owner,hecome a.hsolute. ,And the judge or the cletkofthe county court might, with equal propriett, have been designated as the person to execute the same. Nor is it material in this connection that an outgoing sheriff is required (Code Civil Proc. ,§986) to "complete the execution of all final proc!:'Ss which he has begun to execute," and that a warrant for the collection of delinquent taxes is "deemed an execution against property, * * * @d shall be executed and returned in like ;manner," except as otherwise provided, (Laws Or. p. 766, § 82;) for both a· warrant and an ex.ecution are fully executed when a sale is mll,de thereon, and a certificate thereof given to the purchaser·.. The process is then returnable, and nothing more is done on 01' in pursuance of it. In this state, the sale of property on an execution for the enforcement of a judgment is conditional, not only on redemption by the debtor or any lien creditor, but on the confirmation thereof by the court. Code CiviI Proc. §§ 293-301. The proceedings subsequent to the ,sale and the return of the process, whether for the enforcement of a judgment or the collection of delinquent taxes, including the deed to the purchaser or .redemptioner, are taken in pursuance of the statute in such cases made and provided, and not the process, and are conducted and performed before or by the sheriff then in office. The sUPreme cou.rt of this state in Moore v. Wallamett T. &: L. 00.,7 Or. 369, held that the sheriff in office is the proper person to make the deed in pursuance of a sale on execution. "Such a construction of the statute," says Judge BOISE, speaking for the cou.!'t, "will establish a rule most convenient to the parties; for the sheriff in office can always be as his official duties require his presence in the county, while the former sheriff may die, be disqualified, or remove from the county, and render proceedings before him impracticable." Although this decision was made in 1879, no notice is taken by the court of the amendment to said section 986 of the Code, by the act of October 21, 1878, (Sess. Laws, 99,) which adds a proviso to the effect that, when real property is sold under execution,a.nd the sheriff making the sale fails to make a proper deed to the purchaser during his term of office, the court confirming the sale rrUty order the sheriff in office to make such deed, which shall have the same effect as if made by the sheriff who made the sale. In the argument of counsel for appellant, as reported, (page 363,) this amendment is referred to as plainly evidencing that the legislative assembly recognized the law to be such that the sheriff who made the sale must make the deed; and such appears to be the effect of the amendment, except in the cases therein provided for, wherein the court may order the sheriff in office to make. the deed. But it is probable, though the fact cannot be definitely ascertained from the report of the case, that the deed in question was· made by the sheriff in office before section 986 was amended, and therefore the court treated the amendment8B so far non-existent. But in my judgment section 986, in neither its original nor amended form, has any, or was ever intended to have any, application to a war-