Peterson v. Graham Et Ux.

282 P. 1084, 279 P. 553, 131 Or. 290

• Court: Oregon Supreme Court
• Decided: September 24, 1929
• Status: Published

Opinions

McBRIDE, J.

We have carefully examined the transcript and able briefs in this case, and are of the opinion that the assessment is valid; that the description of the property, although somewhat carelessly made, is valid; that the complaint on foreclosure is valid; and that the order of sale is apparently regular on its face, but we find an insuperable objection to the sale itself.

The sheriff was not armed with the necessary authority to sell the property for the taxes of 1919. $ 4354, 0. L., after providing for the preliminary proceedings on foreclosure of tax certificates, contains, inter alia, the following provisions:

“The court shall give judgment and decree for such taxes, assessments, penalties, interest and costs, as shall appear to be due upon the several lots or tracts described in said summons and application for judgment and decree, and such judgment and decree shall be a several judgment against and lien upon each tract or lot, or part of a tract or lot, for each ldnd of tax or assessment included therein, including all penalties, interest and costs and such several judgments and decrees shall draw and bear interest at the same rate from the date of entry thereof as judgments or decrees for the payment of money under the laws of this state, and the court shall order and direct the clerk to make out and enter an order for the sale of such real property against which such judgment and decree is made, or vacate and set aside the certificate of delinquency or make such other order, judgment or decree as in law and equity may be just. Said order shall be signed by the judge, and a certified copy of such order, together with a list of the property therein ordered sold, shall be delivered to the sheriff of the county, and shall be full and sufficient authority for bim to proceed to sell said property, * *

Now the certified copy, the original of which was signed by the judge, contains a direction to the sheriff to sell the property described for the taxes of 1918 instead of 1919 as it should have done. Giving full credit, notwithstanding the erasure of the figure “8” and the insertion of the figue “9” in the original, the fact remains that in the alleged copy, attached to the clerk’s order, there was not only an entire omission to direct him to sell for the delinquencies of 1919 but a positive direction to sell for the delinquencies of 1918, which, as to this property, did not exist.

For appellant Mr. R. W. Swagler. For respondents Mr. Robert D. Lytle.

The order is the sheriff’s writ of execution, and, though he disregarded the injunction of the writ and sold for the taxes of 1919, in spite of it, he could not be wiser than his writ and the sale was void. The sale is subsequent to the foreclosure decree and is not protected by it, and the sale conveyed no title. However, it has had the good effect of compelling Peterson to pay his delinquent taxes, and as the defendant has received all the money expended by him in paying plaintiff’s delinquencies, he is not seriously harmed.

The decree will be modified so that upon the payment to defendants of the sum tendered by plaintiff, the sale will be set aside and declared void and of no effect, and as both parties are more or less in fault neither will recover costs here or in the court below.

Modified. Rehearing Denied.

Bean, Rand and Rossman, JJ., concur.