Marx v. Hanthorn
Ejectment by Emil Marx against Ida J. Hanthorn. The case was tried to the court, without a jury, and judgment was given for defendant. 30 Fed. Rep. 579. Plaintiff brings error. Affirmed.

Statement by Mr. Justice SHIRAS: This action was brought by the plaintiff, a subject of the emperor of Germany, against the defendant, a citizen of Oregon, to recover the possession of lots 3 and 4, in block E, in the town of Portland.

The action was originally brought against B. Campbell, the party in possession, who, having answered that he was in possession as the tenant of Ida J. Hanthorn, the latter was substituted for him as defendant.

It is alleged in the complaint that the plaintiff is the owner of the premises, and that the defendant wrongfully withholds from him the possession thereof.

The answer contains a denial of the allegations of the complaint, and a plea of title in the defendant, with a right to the possession, and the replication denies the plea.

The defendant claims the premises under a deed of August 28, 1878, from W. W. Chapman and Margaret F., his wife, the latter being the patentee of the United States, under the donation act of 1850, of a tract of land including said block E. The plaintiff claims under two deeds, one from ex-Sheriff Sears of July 29, and the other from Sheriff Jordan of July 30, 1886, each purporting to be made in pursuance of a sale of the property for taxes by the former on June 30, 1884.

By a stipulation filed in the cause it is admitted that the defendant was the owner in fee of the premises at the time of the assessment and sale of the same for taxes, and that she is still such owner, unless such sale and the conveyance thereon had the effect to pass the title to the purchaser thereat, and that the property is worth $6,000.

The case was tried by the court without the intervention of a jury, and on the trial the proceedings, constituting the assessment, levy of taxes, and the sale of the property and the conveyance thereon, were received in evidence, subject to objection for want of competency and materiality. From these it appears that on August 27, 1883, the premises were listed by the assessor of Multnomah county, on the assessment roll thereof, for taxation in that year as the property of Ida J. Hanthorn, and valued at $2,200; that on October 17, 1883, the entry on the assessment roll concerning said property was transcribed onto the tax roll of said county by the clerk thereof, and on the same day the taxes for school, state, and county purposes, amounting to $34.32, were levied on said property, and extended on said tax roll by the county court of said county, and the sheriff thereof commanded, by a warrant indorsed thereon, signed by the county clerk, and sealed with the seal of said court, to collect said taxes by demanding payment of the same, and making sale of the goods and chattels of the persons charged therewith; that the sheriff, George C. Sears, to whom said warrant was directed, having returned that the tax levied on said property was unpaid and delinquent, the latter was, on April 22, 1884, entered on the delinquent tax roll of said county by the clerk thereof as the property of Ida J. Hawthorn, and a warrant indorsed thereon, signed by said clerk, and sealed with the seal of said county, commanding said sheriff to levy on the goods of the delinquent taxpayer, and, in default thereof, on the real property mentioned in said tax list, or sufficient thereof to satisfy said taxes, charges, and expenses; that afterwards said sheriff returned that he received said delinquent tax list and warrant on April 22, 1884, and in pursuance thereof, and in default of personal property, he levied on said lots 3 and 4, and advertised and sold the same on June 18, 1884, as the property of Ida J. Hawthorn, to J. E. Bennett, for $37.51, the amount of said delinquent tax, and costs and expenses thereon; that on July 29, 1886, George C. Sears, as ex-sheriff of said Multnomah county, executed and delivered to said Bennett a deed for the premises, in which the proceedings concerning the assessment of said property, the levy of the taxes thereon, the nonpayment and delinquency of the same, and the sale of the property therefor, were substantially recited, except that it does not thereby appear that the premises were entered on the delinquent tax list or advertised or sold as the property of Ida J. Hawthorn, but as that of Ida F. Hanthorn; and that on July 30, 1886, Thomas A. Jordan, as sheriff of said Multnomah county, by A. W. Witherell, deputy, executed and delivered to said Bennett a deed of the premises, containing the same recitals as the one from Sears. Each deed was acknowledged on the day of its execution, and afterwards admitted to record. The original Jordan deed was put in evidence, and also a certified copy of the record; but the execution of the original was not otherwise proved, and it is contended that the acknowledgment is not legal, and that therefore it cannot be read in evidence without direct proof of its execution.

On July 31, 1886, Bennett and his wife, Alvira F., in consideration of $500, as recited in the deed, quitclaimed the premises to the plaintiff.

The statute of the state of Oregon in relation to the validity and effect of tax deeds provides as follows:

'Sec. 90. After expiration of two years from the date of such certificate, if no redemption shall have been made, the sheriff shall execute to the purchaser, his heirs or assigns, a deed of conveyance, reciting or stating a description of the property sold, the amount bid, the year in which the tax was levied, that the tax was unpaid at the time of the sale, and that no redemption has been made; and such deed shall operate to convey a legal and equitable title to the purchaser, sold in fee simple to the grantee named in the deed; and, upon the delivery of such deed, all the proceedings required or directed by law, in relation to the levy, assessment, and collection of the taxes, and the sale of the property, shall be presumed regular, and to have been had and done in accordance with law; and such deed shall be prima facie evidence of title in the grantee, and such presumption and such prima facie shall not be disputed or avoided except by proof of either (1) fraud in the assessment or collection of the tax; (2) payment of the tax before sale or redemption after the sale; proof of either (1) fraud in the assessment by the fraud of the purchaser; (4) that the property was sold for taxes for which the owner of the property at the time of the sale was not liable, and that no part of the tax was levied or assessed upon the property sold.'

'Sec. 93. All sales made for delinquent taxes * * * must be made as is otherwise made in selling real estate upon an execution, at the courthouse door, between the hours of ten o'clock A. M. and four P. M., in the day-time; and notice of such sale shall be given in some public newspaper, published in the county where the property is situated, or, in case no paper is published in the county, then in the paper published nearest the place of sale, and in general circulation in the county, by advertisement for four consecutive weeks before such sale, describing accurately the lots or land to be sold, and that they are to be sold for taxes due thereon.' Gen. Laws Or. (Ed. 1874,) p. 767.

On March 23, 1887, the defendant, Ida J. Hanthorn, commenced a suit in equity in the circuit court of the United States against E. Marx, the plaintiff in this suit, for the purpose of determining his claim to the premises, alleging that the tax deed under which the plaintiff claims title to the same was void, for certain reasons, and brought into court and tendered him the sum of $50.60 in payment of what was due him thereon.

On February 21, 1887, after the present case had been submitted to the court below for decision, the legislature of Oregon amended said section 90 of the tax law so as to make a tax deed only prima facie evidence of title in the grantee, and requiring the party claiming to be the owner, as against the holder of the tax title, to tender and pay into court, with his answer, the amount of the taxes for which the land was sold, with interest thereon at the rate of 20 per cent. per annum from the sale to the date of deed, together with any taxes the purchaser may have paid, with interest thereon, for the benefit of the holder of the tax deed, his heirs or assigns, in case the same should be held invalid.

The court below found and adjudged that the alleged tax sale was illegal and void; that the plaintiff was not entitled to recover; that the defendant was the owner of the premises, and entitled to the possession thereof, (30 Fed. Rep. 579;) and from this judgment the plaintiff brought his writ of error to this court.

John H. Mitchell, John M.

Gearin, and Jas. Hamilton Lewis, for plaintiff in error.

[Argument of Counsel from pages 177-179 intentionally omitted]

Jos. N. Dolph, for defendant in error.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes
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