Murphy v. Clackamas County & Jones Lumber Corp.

266 P.2d 1065, 264 P.2d 1040, 200 Or. 423, 1953 Ore. LEXIS 308

• Court: Oregon Supreme Court
• Decided: December 16, 1953
• Status: Published

Opinions

ROSSMAN, J.

This is an appeal by the defendants, Clackamas County and Jones Lumber Company, from a decree which the circuit court entered after each of the defendants had filed an answer, the plaintiff had moved for judgment on the pleadings, and the motion had been sustained. The complaint prayed for a decree quieting the plaintiff’s alleged title to a parcel of land which is described in the complaint.

The complaint alleges that in 1937 three individuals, whose names are Walter, Dewey and Vern Alt, became the owners of the land which is the subject matter of this suit, and that in 1944 they conveyed it to the plaintiff. The plaintiff depends upon that conveyance to establish his title to the contested tract of land. Paragraph IV of the complaint alleges that December 14, 1939, a suit was commenced in the circuit court “wherein Clackamas County was plaintiff and Earl S. and Aline Abbott and others were defendants, bearing number 32978, and said suit was commenced for the purpose of foreclosing alleged tax certificates of delinquency, and one of said certificates of delinquency, namely and to-wit, number 2295, concerned the said real property described herein. ’ ’ Paragraph V follows:

“That on the 14th day of December, 1939, the first publication of summons was printed in the said foreclosure suit and on this said date the latest Clackamas County tax roll in the hands of the sheriff for collection had entered thereon and showed that the fee simple owners of said real property were Walter Alt, Dewey Alt and Yern Alt, but in said foreclosure suit neither this plaintiff nor Walter Alt, nor Dewey Alt, nor Yern Alt were party defendants, either in the complaint, which was filed in said suit, or in the summons which was filed and only published in said suit, and no complaint or summons in said cause was ever served on this plaintiff or on Walter Alt, Dewey Alt or Yern Alt.”

The foregoing parts of the complaint are the only ones which are material to the issues presented by this appeal. The plaintiff, as is apparent, contends that the tax foreclosure proceeding and its eventual deed were void.

The defendants filed answers which are copies of each other. Paragraph Y of each contains the averments that are germane. They read:

“Answering the allegations of paragraph Y, this answering defendant admits that on or about the date therein stated notice of said foreclosure suit was commenced by the publication of the first of four weekly publications of the foreclosure list for said year of said Clackamas County, Oregon; defendant denies that there was any publication of summons; defendant admits that none of the parties named in said paragraph Y were named as party defendants and alleges that there were no parties defendant whatsover, and admits that no complaint or summons was ever served upon any of said named persons and denies that any complaint was filed in said proceedings, the document filed being an application for judgment and decree foreclosing tax lien.”

No reply was used. After the answers had been presented, the plaintiff made the motion for judgment on the pleadings which, upon being sustained, resulted in the decree challenged by this appeal.

As we shall presently see, the pleadings employ terms used in our statutes governing the foreclosure of delinquent taxes, but it appears reasonably certain that the pleadings use the terms in a sense different from the statutes. We, therefore, believe that it will be helpful, although unavoidably repetitious, to retrace our steps and review the paragraphs of the pleadings from which we just quoted. Paragraph IV of the complaint indicates that the foreclosure suit was of the omnibus type for which Oregon Laws 1937, Ch 470, which was then in effect, made provision. The same paragraph states that the subject matter of foreclosure was tax certificates of delinquency. We shall have occasion to revert to that fact. According to paragraph V of the complaint, a published summons was employed in the suit. The same paragraph says: ‘ ‘ The latest Clackamas County tax roll in the hands of the sheriff for collection” bore the names of the three Alts as the owners of the property against which foreclosure was sought. Then the complaint declares that “in said foreclosure suit neither this plaintiff nor Walter Alt, nor Dewey Alt, nor Vern Alt were party defendants, either in the complaint, which was filed in said suit, or in the summons which was filed and only published.” Continuing, the complaint avers that no personal service of the complaint and summons was made. The paragraph of the answer which we quoted “admits” that at the time mentioned in the complaint “the foreclosure list” of Clackamas County was given “four weekly publications”. It denies “there was any publication of summons”. We pause to observe that if it was the duty of Clackamas County, as party plaintiff in the foreclosure suit, to have published a summons, the answer’s denial that any was published possibly presents a vital issue, even if all other issues can be resolved in favor of the plaintiff. The answer, as we have seen, “admits” that a foreclosure list, not a summons, was published. It not only concedes that none of the Alts was named as a defendant in the foreclosure proceeding, but asserts that in the latter “there were no parties defendant whatsover”. It declares that no complaint was filed in the tax suit, but says that “an application for judgment and decree” was employed.

The above denials, averments and admissions call for us at the outset to determine which of the various enactments emanating from the legislature from time to time and governing tax foreclosure proceedings was applicable to the suit filed by Clackamas County in December, 1939.

The defendants-appellants state repeatedly in their brief that this case is governed by Oregon Laws 1939, Ch 485, which received analysis in Harriman v. Linn County, 200, Or 1, 264, P2d 816. For example, their brief says:

“Accordingly even prior to the 1939 statute, involved in the present case * * #. Thus far we have been referring to the Oregon tax foreclosure statutes prior to 1939, but it is the statute enacted that year that is involved in this suit. * * * The learned trial judge appears to have based his decision in this case largely, if not entirely, on Sec. 2 of Chapter 485, Laws of 1939, now O. C. L. A. Sec. 110-902. This section provides * *

The plaintiff-respondent evidently also believes that Oregon Laws 1939, Ch 485, is the controlling legislation. Apart from mentioning 1907 General Laws of Oregon, Ch 267, by way of historical background, the brief of his counsel confines itself to citations of sections of the 1939 act. We shall not pause to quote the many passages except to state that they are somewhat analogous to those which we quoted from the defendant-appellant’s brief.

We have made the above references to the positions taken by counsel, not for the purpose of twitting them on account of an error, excusable in nature, which we believe they made, but to indicate that if the 1939 act is not in truth applicable to this suit, the merits of the latter have so far been determined under statutory law foreign to the case.

Oregon Laws 1939, Ch 485, § 22 (§ 110-922, OCLA) says:

“Any proceeding in foreclosure of liens for delinquent taxes which may have been undertaken by any county under statutes in effect prior to the effective date of this act shall be continued and completed in accordance with such statutes. Also, any certificate of delinquency heretofore issued or assigned * * *, and all proceedings in connection therewith, shall be subject to and governed by the statutes in effect prior to this act. All such statutes shall continue in full force and effect for the aforesaid purposes.”

It will be recalled that, according to the complaint, the tax suit was commenced for the purpose of foreclosing alleged tax certificates. Prior to the 1939 enactment, certificates of tax delinquency were issued. See §§ 69-801 through 69-816, Oregon Code 1935 Supp., as amended. But the 1939 act repealed the sections that had authorized the issuance and foreclosure of certificates of tax delinquency. It made provision for a new basic document to which, it gave the name of “foreclosure list”. See § 110-902, OCLA. From the circumstances just mentioned we see that since the object of the foreclosure suit was “tax certificates ’ ’, they must have been issued prior to 1939 and, hence, the 1939 act was not applicable to the tax foreclosure suit.

Linn County v. Rozelle, 177 Or 245, 162 P2d 150, held that proceedings such as Clackamas County instituted for the foreclosure of its certificates of tax delinquency are in rem, and not merely quasi in rem. That being true, we held in Harriman v. Limn County, supra, that no individual is a party defendant in a foreclosure suit instituted by a county. Although the pleadings use the word “defendant”, we are going to assume that they employ that term as synonymous with “owner”, as the latter is used in §69-801, Oregon Code 1935 Supp., as amended. Hence, we shall attach no controlling importance to the employment of the word “defendant”.

Even though we deem, for the purposes of this case, the word “defendant” as the equivalent of “owner”, yet the fact remains that the complaint alleged “on the 14th day of December, 1939, the first publication of summons was printed” and the answer denied that a summons was published. A motion for judgment on the pleadings cannot assume as true a material averment made by the party who moves for judgment which is denied by his adversary. The answer said:“ This answering defendant admits * * * said foreclosure suit was commenced by the publication of the first of our weekly publications of the foreclosure list”. Since the “foreclosure list” was created by the 1939 act, which was inapplicable to the foreclosure suit, the publication in that suit of a foreclosure list was unwarranted.

Oregon Laws 1937, Cli 470, § 2, which governed the phase of the foreclosure suit under scrutiny, follows:

“* * * Thereupon the tax collector, with the assistance of the district attorney, shall proceed to foreclose in the name of the county the tax liens embraced in such certificate or certificates. In all foreclosures by a county, notice shall be given exclusively by publication in one general notice, describing the property as the same is described on the tax rolls. Such notice shall be published once a week for not less than four successive weeks, and it shall not be necessary to mail any copy of such notice to any defendant named or any person interested in any property described therein. A general certificate in book form, covering all properties described therein, may be issued to the county and one general proceeding may be brought on thé part of the county to foreclose the liens against said properties. All persons interested in any property involved in any such proceeding may be made co-defendants, and if unknown, may be named therein as unknown owners, and the publication of such notice shall be sufficient service on all persons interested. * * *”

Oregon Laws 1935, Special Session, Ch 56, § 2, which had preceded and was amended by the 1937 enactment, said in part:

“The tax collector shall * i! * proceed to foreclose in the name of the county the tax liens embraced in such certificates, and the same proceeding shall be had as when held by an individual.”

By returning to the words which we quoted from the 1937 act, it will be seen that it omits the phrase, “the same proceeding shall be had as when held by an individual”. Section 69-807, Oregon Code 1935 Supp., outlined in detail the facts which were required to be included in the “summons”, that being the instrument employed in foreclosures conducted by individuals. But, as we have just seen, the 1937 statute repealed the provision which required tax foreclosure proceedings prosecuted by a county to employ the same proceeding used in foreclosures conducted by individuals.

From the brief directions contained in Oregon Laws 1937, Ch 470, § 2, as to the contents of the notice to be published in suits conducted by a county, we see that they were virtually limited to the following:

“* * * notice shall be given exclusively by publication * * * describing the property as the same is described on the tax rolls. Such notice shall be published once a week for not less than four successive weeks, * * *. The name of the person appearing on the latest tax roll in the hands of the tax collector at the date of the first publication of such notice, as the owner of any property therein described, shall be considered and treated as the owner of said property, and each such proceeding shall be a proceeding in rem against the property itself.”

Obviously, it was essential, in preparing the notice, to comply also with the demands of due process.

Although the complaint alleged that a “summons” was published in the contested tax foreclosure suit, our statutes reserved summonses for use only in foreclosure suits instituted by individuals. A published notice was the process required by our laws for use in foreclosure suits conducted by counties. We have noticed that the answer denied that any “summons” whatever was used in the county’s tax foreclosure suit and affirmatively averred that “a notice of said foreclosure suit was commenced by the publication * * * of the foreclosure list”. The term “foreclosure list”, as we have seen, came into our tax collection laws for the first time with the enactment of Oregon Laws 1939, Ch 485, § 2 (§ 110-902, OCLA). The section just mentioned defines the contents of a foreclosure list, and §4 (§110-904, OCLA) requires the publication of the foreclosure list as the published notice under the revised procedure effected by the 1939 act. Thus, the foreclosure list was the wrong document for employment in the county’s tax foreclosure suit.

The foregoing indicates that although the county’s tax foreclosure suit should have been begun by the publication of a notice, the plaintiff alleges that the county published a summons, and the defendant, after denying that a summons was published, swore that the publication consisted of the tax foreclosure list. Neither party says that a notice of the kind required by the 1937 statute was published. Unless a notice whieh conformed to the requisites of the 1937 act was employed, the foreclosure court lacked jurisdiction. The complaint does not disclose the contents of the summons which it says was employed. If, as the answer says, the county’s foreclosure list was the paper which was published, it certainly included data and terms foreign to the requirements of the 1937 act.

Without stating further our analysis of the situation, we express our belief that the circuit court erred when it sustained the plaintiff’s motion for judgment on the pleadings. It seems apparent that a ruling upon the validity of the county’s tax foreclosure suit affects many properties, in addition to the one with whieh this suit is concerned. We do not think that its validity should be determined from the meager, confusing and contradictory information which the pleadings in this case submit. Error was committed when the plaintiff’s motion was sustained. The defendant made no corresponding motion. The canse should be remanded for trial upon its merits.

Winston L. Bradshaiv, District Attorney, Walter J. Apley, Deputy District Attorney, of Oregon City, and Cake, Jaureguy & Hardy, of Portland, for the petition. Lee A. EUmaker, of Portland, contra.

Reversed and remanded.