Hall v. O'Connell , 51 Or. 225 ( 1908 )

Mr. Justice Moore

delivered the opinion of the court.

It is contended by appellant’s counsel that the sale of Koch’s lots to Coos County for the payment of the delinquent taxes was valid, and, though a mistake was made in the description of the block, as noted in the sheriff’s return of the sale and also in the tax deed executed to O’Connell, the county court very properly permitted the record to be amended so as to correspond with the facts as they occurred, and, having done so, the circuit court erred in sustaining the demurrer and in granting the relief prayed for by the plaintiff. The statute in force September 2-, 1899, empowered the county judge, at any sale of land for taxes, to bid on behalf of the county the amount of the taxes and costs that were charged against each tract, and, if there were no higher bidder therefor, such land should be sold to and become the property of the county: Laws 1893, p. 28. A warrant for the purpose of collecting delinquent taxes was treated as an execution against property, and was to be executed and returned in like manner as such writ: B. & C. Comp. §3118. It was the duty of each county clerk to keep a “record of delinquent tax sales,” and whenever any real property was sold for the recovery of such taxes it was incumbent upon the clerk of the county, as soon as a report thereof was made to him by the officer who executed the warrant for such sale, to make an entry in such public record of the facts relative to the proceedings therein, to-wit: “ * * (2) An accurate description of each lot, tract, or parcel of property .sold at such sale * Laws 1893, p. 87. If no redemption of real property sold for delinquent taxes was made within the time limited therefor, the title to such land vested in the county without issuance of a deed or other formality: B. & C. Comp. § 3131. Upon a resale of land bid in by a county, the sheriff conducting the sale was required to execute a deed to the purchaser, which vested in him a title to the premises: B. & C. Comp. § 3134.

1. In selling land for delinquent taxes a sheriff does not act under a common-law writ, but pursuant to statutory power which must be strictly pursued; and, to render a sale of real property for such purposes efficacious, that officer must perform the several steps which are necessary to bring his acts within the measure of the power conferred, and, if he fails to comply with these demands, the sale is incomplete, and cannot thereafter be perfected by his doing the act required: Taylor v. Allen, 67 N. C. 346.

A person in performing a statutory duty which does not involve the exercise of any judicial functions is a mere ministerial officer, whose powers of amendment, upon common-law principles, is excluded unless such right is conferred by some statute: Dowell v. Portland, 13 Or. 248 (10 Pac. 308); Ladd v. Spencer, 23 Or. 193 (31 Pac. 474). Thus, when a sheriff is directed by statute to make a return upon the warrant attached to a delinquent roll, unless his return correctly describes the premises sold for the payment of the burden imposed, the sale is void: Andrews v. Senter, 32 Me. 394.

In construing a statute of California which required a sheriff in selling real property for the recovery of delinquent taxes to sell only the smallest quantity of land which any person would take in consideration of paying the burden imposed, it was held by the Supreme Court of the United States that a sheriff’s deed reciting a sale to the highest bidder was void on its face: French v. Edwards, 13 Wall. (80 U. S.) 506: 20 L. Ed. 702. After that decision was rendered, the party claiming a title to the premises under the tax sale thereof procured an ex parte order of a state court, pursuant to which the ex-sheriff who made the sale amended his return so as to show a sale of the least quantity of land that any party would take in consideration of being permitted to pay the entire taxes and costs, and thereupon executed another deed in which the facts were stated as in the amended return. A supplemental answer was thereafter filed, setting up the title acquired since the former trial, through the corrected return and deed. In disposing of the defense thus interposed, it was held that the original return was made in the regular course of the sheriff’s duty, and was the'proper and only record evidence of the mode of sale, and that it showed a void sale, from which there was no necessity to redeem; that the owner of the property was not required to ascertain -the mode of sale from any other source, and had a right to rely, upon the truth of the record thus made; and that the ex-sheriff could not years after the time for redemption had expired, amend his return so as to show the sale to be valid, which before appeared upon the record to be void, and thereby preclude the owner from the right of redemption when he had relied upon the false record: French v. Edwards, 9 Fed. Cas. No. 5,098. In reaching that conclusion Judge Sawyer says:

“The return being made became a part of the record of the case of which parties interested were bound to take notice, and upon which they were entitled to rely. If all the proceedings were regular, the owner was perhaps bound to know that a sale would be made, but he was not required to be present in person, and was not bound to know the terms upon which the sheriff actually sold, otherwise than from the record made of it by the officer in his return as required by law, and for the purpose of giving this information.”

2. An officer cannot, after the expiration of the time prescribed for redeeming property sold for delinquent taxes, .amend a record so as to make it correspond with the acts performed by him: Judevine v. Jackson, 18 Vt. 470; Langdon v. Poor, 20 Vt. 13. The rule to be extracted from these decisions we consider controlling in the case at bar, and, as the statute in force when the lots were sold to Coos County required the record of delinquent tax sales to contain an accurate description of each lot, tract or parcel of property sold, to be entered by the county clerk as soon as the report of the delinquent sales was made by the officer who executed the warrant, such direction presupposes a compliance by the sheriff with that requirement. Unless, therefore, the premises were accurately described by Gage in his return of the sales, Koch was not obliged to redeem therefrom, because .his title could not be jeopardized in any manner except by a strict observance of the provisions of the statute.

3. To permit a sheriff’s return of the sale of real property for the recovery of delinquent taxes to be amended after the time for redemption has expired, and thus deprive an owner of the premises of his title, when he has had reason to rely upon the verity of the original return, would be taking an undue advantage of him, for he might have been lulled into inaction by the description contained in the return until it was too late to assert his rights to the property. Before the record was altered, and in the absence of any legal notice that the real property was affected by the sale, the plaintiff as the grantee of Koch paid all the delinquent taxes imposed on the premises, and now to permit the title to be divested by a mere amendment of the record would, in our opinion, be inequitable. The complaint herein was interposed after O’Connell had commenced an action to obtain possession of the lots, and, as this suit is invoked as a shield, the statute of limitations is not a bar to the relief granted.

Believing the decree rendered to be correct, it is affirmed. Affirmed.