Frederick v. Douglas County , 176 Or. 54 ( 1945 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Suit by Ada C. Frederick against Douglas County, and others, to remove the cloud of a void tax sale from title to real estate claimed by the plaintiff. From a judgment dismissing the suit, following the sustaining of defendants' demurrers to the complaint and plaintiff's refusal to plead further, the plaintiff appeals.

AFFIRMED. This is a suit to remove the cloud of an alleged void tax sale from the title to real estate claimed by the plaintiff. Demurrers were filed on the ground that it appears from the complaint that the suit was not commenced within the time limited by O.C.L.A., § 110-920. The demurrers were sustained and the plaintiff refusing to plead further, judgment was entered dismissing the suit. The plaintiff appeals.

The allegations of the complaint may be summarized as follows: Ever since March 19, 1927, the plaintiff has been the owner of record of real property located within the city of Roseburg, Douglas County, Oregon, the description by metes and bounds being set forth;

"* * * on June 15, 1939, the Sheriff of Douglas County, Oregon, filed in the office of the County Clerk of Douglas County, Oregon, a list of all real property in Douglas County, Oregon, then subject to foreclosure for delinquent taxes; and * * * the said foreclosure list contained and contains the following description and statement:

"Ada C. Frederick, MB Vol 77 Pg 453D Vol 89 Pg 124D, Bushey's Add. Roseburg; delinquent for tax years 1930, 1934, 1935, 1937, 1938: Sheet No. 384 of Foreclosure List, the amount with interest to June 15, 1939, being $376.30;".

On November 7, 1939, Douglas County, as plaintiff, filed an application for judgment against the various tracts of real estate described in the foreclosure list on account of delinquent taxes. The application contained a "description and statement" which was identical to that contained in the foreclosure list as set forth above. A copy of the notice of the application for judgment as published in the newspaper is set forth as an exhibit attached to, and incorporated in, the complaint. That notice, as published, contained the "description and statement" identical to that which appeared in the foreclosure list and in the application for judgment. A return showing proof of publication was filed on April 26, 1940, and on May 29, 1940, the circuit court rendered a decree of foreclosure. The decree contained the following "description and statement":

"Ada C. Frederick, present owner, MB Vol 77 Pg 453D Vol 89 Pg 124D, Bushey's Add. to Roseburg: Foreclosure List: Sheet No. 384, issued to Douglas County, June 15, 1939, amount due, $376.30, with interest thereon at the rate of 8% per annum from said date, making $26.32 interest, penalty $7.52, total $410.14;".

On June 2, 1941, the sheriff executed a deed to Douglas County containing the following description:

"Roseburg, Bushey's Add. MB Vol 77 Pg 453D Vol 89 Pg 124D;

"* * * on June 16, 1942, the defendant Douglas County, Oregon, by the terms of a written contract in the possession of the defendant county sold to the defendants, Ben Zenor and Nannie Zenor, the following described real estate: MB Vol 77 Pg 453D Vol 89 Pg 124D for the agreed price of $600.00, of which the sum of $200.00 was paid to the said county by the said Zenors; and * * * on account of said contract the defendant county placed the defendants Zenor into the possession of the real estate described within paragraph 1 above, and * * * on account of the said contract the defendants Zenor went into the possession of the real estate described within paragraph 1 above;".

(The description contained in "paragraph 1 above" is the metes and bounds description of the real property which was owned by the plaintiff.)

The complaint continues with a specification of the particulars in which the plaintiff claims that the proceedings were defective and void. They will be discussed in the course of the opinion.

The plaintiffs have joined as parties defendant, Douglas County and the defendants Zenor, the alleged purchasers from the county. The prayer of the complaint is for a decree cancelling the deed to the county and the contract with the defendants Zenor, removing the cloud from the plaintiff's title and placing the plaintiff in possession of the property. The suit was filed on September 7, 1943, which is more than two years after the date of the judgment and decree of foreclosure and sale to Douglas County.