Sanborn v. Jennings , 63 Or. 52 ( 1912 )

Opinion by

Mr. Chief Justice Eakin.

1. In support of their demurrer, plaintiffs urge that, as the tax deed is set out in the answer and shows on its face that the sale was made to pay the taxes, costs, charges, and interest accruing thereon, it is void on its face, the demand including interest, an item not authorized by law, relying exclusively on the opinion in Stitt v. Stringham, 55 Or. 89 (105 Pac. 252). The only part of the tax proceeding disclosed by the record before us is contained in the answer, and the defense depends upon the prima facie presumption created by the deed, under Section 2823, Hill’s Code, in favor of the tax proceeding resulting in the deed. The tax deed states that the warrant in the hands of the sheriff for the collection of the tax commanded him to levy on so much of the property described in the roll as should be necessary to satisfy the amount of taxes, with costs and expenses. It also recites that he levied upon the property described for the taxes due, together with costs and charges, and that notice of the sale was duly given according to law, and the property sold to Jennings for $5.56. There is a subsequent recital in the deed that the bid was the best bid made that was sufficient to pay the taxes, costs, charges, and interest; but it does not necessarily appear from that recital that any amount was included for interest. The amount of the tax was $4.50, and the additional $1.06, included in the bid, may reasonably be inferred as the cost and charges of the levy, advertisement, and other expenses of the sale.

In 37 Cyc. 1389, it is said:

“If real property is offered at tax sale for an amount exceeding the aggregate of taxes, costs, penalties, and charges for which the land is legally and actually liable, the sale, as a rule, is entirely void and passes no title. But it will not be lightly assumed that the sale was made for an excessive amount; on the contrary, this must be clearly shown.”

The warrant called for the tax, costs, and charges, and the recital of the levy followed that language, and the notice of sale was given according to law which could not call for interest. The amount of the costs and charges of the proceeding does not appear in the record; nor is there any reference to interest, other than the statement that the bid was the only bid that was sufficient to cover the costs, charges, and interest; and those particular words were evidently printed words of a blank deed, as they and many other clauses indicate, and not the particular language of the sheriff or his scrivener.

In Doland v. Mooney, 79 Cal. 137 (21 Pac. 436), it is said: “There are in the certificate and deed preliminary statements, that ‘said taxes, with five per cent and the costs of publication, and other costs, not having been paid,’ etc.; but they both recite that Mayo was the bidder who offered to take the least quantity and pay the taxes and costs due thereon, including 50 cents for the certificate, and it does not appear that the amount for which the property was actually sold included anything for ‘costs of publication’ ” — the court holding that it does not appear that the amount for which the property-was actually sold included anything for costs of publication, and the recital in the deed does not vitiate it; that if an excessive amount was demanded, and the property sold therefor, it would invalidate the sale, and that fact may be shown, but the presumption is in favor of the regularity of official action.

In Drennan v. Beierlein, 49 Mich. 272 (13 N. W. 587), the sale was for 30 cents in excess of the tax, and it was contended that the excess amount was improperly added as penalty. The court say that it does not clearly appear for what the 30 cents were added to the State tax; and it is presumed that they were added for some other reason. It must be assumed, in the absence of any clear showing to the contrary, that the addition was lawfully made. These rulings do not conflict with the case of Stitt v. Stringham, 55 Or. 89 (105 Pac. 252), where the tax proceeding seems to have been before the court, showing the taxes to be $3.68, and the sale was for $31, and we conclude that the deed is not void on account of the recital as to costs, expenses, and interest; it not appearing therefrom, or otherwise, that any part of the amount bid at the sale was for interest.

2. Defendants plead estoppel against plaintiffs as successors in interest to Fisk, the sheriff who made the sale. Whether the sheriff may be held liable in damages for his own mistake or neglect is- a question not raised in this case. In making the deed he acted in his official capacity, and not in his individual capacity; and the covenants of the deed, if there are such, are not personal, but statutory. By Section 2823, Hill’s Code, the statute, under which the sale in question was made, provides that “such deed shall operate to convey a legal and equitable title to the purchaser, sold in fee simple to the grantee named in such deed.” This is the effect given to the deed if the proceedings are regular, and not a covenant in the deed; and the deed is not in any sense the individual act of Fisk, or a warranty of the title conveyed, much less the conveyance of any title or interest held by the sheriff. 37 Cyc. 1436, 1526; Stephenson v. Weeks, 22 N. H. 257; Gibson v. Mussey, 11 Vt. 212; Byam v. Cook, 21 Iowa 392. Furthermore, the rule of caveat emptor applies in such a case. 37 Cyc. 1474, 1479; Dowell v. Portland, 13 Or. 248, 256 (10 Pac. 308).

3, 4. As to the third defense — the statute of limitations under Section 2840, Hill’s Code — it is sufficient to say that the record does not show the date on which the sheriff’s deed was recorded, and therefore.it does not appear that the suit was commenced three years after such record; nor are any facts alleged to bring the case within the holding of Martin v. White, 53 Or. 326 (100 Pac. 290), namely, possession by defendants.

The first defense of the answer states a good defense, the demurrer to which should have been overruled. As to the other defenses, the demurrer was properly sustained.

The decree is reversed, and the causes remanded for such further proceedings as may be proper, not inconsistent with this opinion.

Reversed: Rehearing Denied.