Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-06

to him; that no redemption was eveI
made from either Of the sales men
toned. and that on May 27, 1909, the
sheriff executed to him tax deeds
covering the lots, and that in order
to clear the title thereon, he paid
taxes, costs and penalties levied
against the same, amounting tC
S41.36.
Plaintiff. replying, admits the pay
ment by defendant of taxes, interest
etc, amounting to S3S.0O, but denies
the other allegations of the answer
asserting that on May 16, 1909, he
rendered defendant the sum of S3S0C
in full satisfaction of said taxes and
expenses, which the latter refused
and maintains that the deeds to the
lots for the delinquent taxes of 1901
are void and of not effect, for the
reason that the sheriff's warrant con-
tanned no authority for selling real
estate.
Bean, j.: Plaintiff assigns as err
ror, in effect, that the deeds issued for
the sale of the lots, for the taxes OF
AOVNf aAC NOlu lOl lllE lGdoOn ludl
prior to the issuance thereof he ten
dered to the defendant the amount OF
the taxes and all expenses, interest
and costs. mentioned therein; that
the sale of the lots for the 1901 taxes
is void for the reason that the war
rant, by the authority of which they
were sold, authorized the sheriff to
sell goods and chattels only, and ex-
tended to him no authority to sell
real estate; that no finding was made
by the trial court, to the effect that
defendant had been in possession OF
the lots for the statutory period, and
! that the testimony shows no such
possession by the defendant, but the
! contrary, and that in the absence OF
such possession the statute would
not run.
Defendants counsel, in their brief
contend that the action, not having
been commenced within three years
after the recording of the deeds for
the taxes of 1901, and defendant be-
ing in actual possession at the COM
mencement of the action, he had con-
structiive possession by virtue of the
recorded tax deeds, regular upon
their face, under the provisions of
the laws Of 1905 p. 313, and See.
1925, L. o. L., although such deeds
might be void, and that plaintiffs S
remedy is barred. In support of this
proposition, defendant cites the case
of Skinner V. Williams, S5 Mo-, 489.
From an examination of which, how
ever, it appears that the statute of
Missouri differs from ours, in that it
authorizes any person. claiming to
own real property, to maintain an ac-
ton in ejectment for the recovery of
the possession thereof against one
claiming under a tax deed, whether
or not such person is in actual pos
session. This constitutes the main
question to be considered as to the
deeds for the taxes Of 1901, although
at the trial objection was made to
these deeds for the reason that lots
3 and 4, block 8, were listed and as
sessed together and not separately,
and lots and s, block 4, were listed
and assessed together and not separ-
ately On this latter point see Bre-
tano V. Bretano, Al Or, 10, IS. From
the sheriff's deed of lots Z and 8,
block 4, it apepars that they were
sold on February 23, 1906, instead of
on February 23, 1903, as claimed.
Under Sec. 9709, L. o. L. such deeds
are prima facie evidence as to the
regularity of the assessment and sale
OF the proeprty, and that the antece-
dent proceedings were conducted in
the same manner provided by law.
In discussing question similar to
the one now under consideration, Mr..
Justice Eakin, speaking for the
Court in Martin v. White, SO Or, 319,
said:
"The effect of the recitals in the
deed may be made conclusive as to
Irregularities, but, if the proceedings
are void, bar to an action or a suit
by the owner must be something
more than the lapse of time The
owner must be ousted from possess
sion, or the purchasers title quieted,
to cut off the right of the owner. +
AS rule, these statutes reach
only those defects which do not go
to the absence of authority to sell or
convey. They do not operate to cure
defects or to validate
titles which are void for want of
power to sell the property Getting
q Am. & Eng. Cyc., 2 ed, 9S7) =
= But, when the tax proceeding is
void and the tax sale purchaser is
not in possession, it is beyond the
power of the legislature to transfer
to the purchaser the title of the own
er by lapse of time alone. Getting
Blackwell Tax Title, Sec. 944;
Breaux v, Negrotto, Jr., 43 La. Ann,
426; 8 South, 5O2) There must be
actual possession by the purchaser
before the statute begins to run.
Getting Scott V. Parry, 10S La, Il;
80 South, 1881 A limitation of time,
in which the owner can bring an ac-
tion or suit to contest such a title
cannot operate to cut off the owners
title, where the tax proceeding is
void, except by way of prescription
which depends upon actual posses
Sinn 20