To make a tax sale valid, observance of every safeguard to the
owner created by statute is imperatively necessary.
When not modified by statute, the burden of proof is on the
holder of a tax deed to maintain his title, when questioned, by
showing that the provisions of the statute have been complied
with.
It is competent for a legislature to declare that a tax deed
shall be
prima facie evidence not only of the regularity
of the sale, but also of all prior proceedings, and of title in the
purchaser, but as the legislature cannot deprive one of his
property by makings adversary's claim to it conclusive
Page 148 U. S. 173
of its own validity, it cannot make a tax deed conclusive
evidence of the holder's title to the land.
The reasonable meaning of the Oregon statutes regulating notices
and sales of property for taxes (Gen. Laws, ed. 1874, 767, §§ 90,
93; Hill's Ann. Laws, 1309) is that such notice and advertisement
should give the correct names of those whose property is to be
sold.
Notice in Oregon that the property of Ida J. Hawthorn was to be
sold was not only not notice that the property of Ida J. Hanthorn
was to be sold, but was actually misleading, and such want of
notice or misleading notice vitiated the sale.
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
Page 148 U. S. 174
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 endorsed 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 endorsed 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,
Page 148 U. S. 175
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;
Page 148 U. S. 176
(2) payment of the tax before sale or redemption after the sale;
(3) that the payment or redemption was prevented 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 daytime, 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."
General Laws of Oregon, c. 57, p. 767, ed. 1845.
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 twenty percent 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.
Page 148 U. S. 177
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 F. 579, and from this judgment the
plaintiff brought his writ of error to this Court.
Page 148 U. S. 180
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
As there must be express statutory authority for selling lands
for taxes, and as such sale is in the nature of an
ex
parte proceeding, there must be, in order to make out a valid
title, a substantial compliance with the provisions of the law
authorizing the sale. A statutory power, to be validly executed,
must be executed according to the statutory directions. It is no
doubt true that there may be provisions in tax laws that are made
in the interest of the public, and which do not concern the
taxpayer, and a failure to punctiliously observe them may furnish
him with no just ground of complaint. But the well established rule
is, as above stated, that observance of every safeguard to the
owner created by the statute is imperatively necessary. So too it
is the rule, when not modified by statute, that the burden of proof
is on the holder of a tax deed to maintain his title by
affirmatively showing that the provisions of the law have been
complied with.
We do not perceive that these general rules have been materially
modified by the statutes of Oregon to which our attention has been
called. It is true that, as to certain preliminary and directory
conditions of tax sales, the Oregon statute dated December 18,
1865, and cited as section 90 of the general laws, declares that
upon delivery of a tax 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
sale; (3) that the payment or redemption was prevented by the fraud
of the purchaser; (4) that the property was sole 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."
But
Page 148 U. S. 181
by the amendatory act of February 21, 1887, 2 Hill's Annotated
Laws 1309, ed. 1892, the provision respecting the evidential effect
of the deed was changed so as to read as follows:
"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 such deed shall be
prima facie evidence of
title in the grantee."
At the trial, the plaintiff, the holder of the tax deed, was
given the benefit of this legislation, as his deed was treated as
making out a
prima facie right to recover, and the
evidence upon which the questions in the case arose was put in by
the defendant.
It was indeed contended by the plaintiff in the court below, and
likewise in this Court, that the irregularities or disregard of law
which, in the opinion of that court, invalidated the tax sale had
to do with proceedings which the act of 1865 protected from
inquiry, and in respect to which it made the tax deed absolute
evidence, and that therefore the subsequent legislation declaring
the effect of the tax deed, as evidence, to be merely
prima
facie was unconstitutional and ineffective so far as the
plaintiff was concerned, he having received his deed before the
enactment of the latter law.
Courts of high authority have held that mere rules of evidence
do not form part of contracts entered into while they are in force,
and that it is competent for the legislature to, from time to time,
change the rules of evidence and to make such change applicable to
existing causes of action.
Rich v. Flanders, 39 N.H. 304;
Howard v. Moot, 64 N.Y. 262;
Kendall v. Kingston,
5 Mass. 524;
Commonwealth v. Williams, 6 Gray 1;
Goshen v. Richmond, 4 Allen 458.
"It must be evident that a
right to have one's controversies
determined by existing rules of evidence is not a vested
right. These rules pertain to the remedies which the state
provides for its citizens, and generally, in legal contemplation,
they neither enter into and constitute a part of any contract, nor
can be regarded as being of the essence of any right which a party
may seek to enforce. Like other rules affecting the
Page 148 U. S. 182
remedy, they must therefore at all times be subject to
modification and control by the legislature, and the changes which
are enacted may lawfully be made applicable to existing causes of
action even in those states in which retrospective laws are
forbidden."
Cooley's Constitutional Limitations 457, 4th ed. 1878.
But as the court below held that, if and so far as the
legislature had the power to and did make the tax deed conclusive
evidence of title, the legislature had no power, as against a
purchaser under that law, to make the deed, by a subsequent
enactment,
prima facie only, it is not necessary for this
Court to consider whether we can adopt that view of the
question.
The court held that even if the act of 1887 could not
constitutionally avail as against the plaintiff to change the
evidential effect of the tax deed, yet that the act of 1865 could
not operate to prevent the defendant from showing that she had no
notice, actual or constructive, of the tax sale.
Forster v.
Forster, 129 Mass. 559.
The view of the court was that notice of the sale was an
essential part of the proceedings; that the legislature did not
have the power to make the tax deed conclusive evidence of the
fact; that there must be an opportunity given for investigation and
trial, and that the legislature cannot, under the pretense of
prescribing rules of evidence, preclude a party from making proof
of his right by arbitrarily and unreasonably declaring that, on
some particular circumstance's being shown by the other party, the
controversy is closed by a conclusive presumption in favor of the
latter.
Without going at length into the discussion of a subject so
often considered, we think the conclusion reached by the courts
generally may be stated as follows:
"It is competent for the legislature to declare that a tax deed
shall be
prima facie evidence not only of the regularity
of the sale, but of all prior proceedings, and of title in the
purchaser, but that the legislature cannot deprive one of his
property by making his adversary's claim to it, whatever that claim
may be, conclusive of its own validity, and it cannot therefore
make the tax deed conclusive evidence of the holder's title to the
land."
Mr. Cooley sums up his examination of the cases on this
Page 148 U. S. 183
subject in the following statement:
"That a tax deed can be made conclusive evidence of title in the
grantee we think is more than doubtful. The attempt is a plain
violation of the great principle of Magna Charta, which has been
incorporated in our bill of rights, and, if successful, would in
many cases deprive the citizen of his property by proceedings
absolutely without warrant of law or of justice. It is not in the
power of any American legislature to deprive one of his property by
making his adversary's claim to it, whatever that claim may be,
conclusive of its own validity. It cannot, therefore, make the tax
deed conclusive evidence of the holder's title to the land, or of
the possible jurisdictional facts which would make out title. But
the legislature might doubtless make the deed conclusive evidence
of . . . everything except the essentials."
Cooley on Taxation, 521, 5th ed. 1886.
This brings us to a consideration of the matters put in evidence
by the defendant going to overthrow the
prima facie
presumptions created by the tax deed. There were two. The land in
question was admitted to belong to Ida J. Hanthorn, and that fact
was found by the court below, but on the delinquent tax roll the
property is alleged to belong to Ida J. Hawthorn, and it further
appears by the return of the sheriff that the property was
advertised and sold as the property of Ida J. Hawthorn.
It was the opinion of the court below that due and reasonable
notice of the sale of property for a delinquent tax is necessary
for the validity of such sale, and that the fair meaning of the
Oregon statutes regulating judicial sales and sales for taxes is
that the name of the owner of the lands to be sold shall appear in
the notice of sale, and the court was further of the opinion that
to give notice that the property of Ida J. Hawthorn was to be sold
was not only not notice that the property of Ida J. Hanthorn was to
be sold, but was actually misleading, and that such want of notice
or misleading notice vitiated the sale.
It is contended on behalf of the plaintiff that the statute does
not require that the notice should name the owner or name him
correctly; that it is sufficient to correctly describe
Page 148 U. S. 184
the property which is to be sold, and that, at any rate, the
notice in the present case was sufficient within the meaning of the
rule of idem sonans.
We agree with the court below in thinking that the reasonable
meaning of the statutes regulating notices and sales of property
for taxes is that such notice and advertisement should give the
correct names of those whose property is to be sold. While the
statutes do not in terms say that the names of the owners should be
published, yet such would seem to be the fair presumption, and the
present case shows that such was the construction adopted by the
officials, as they did name, though incorrectly, an owner in the
notice.
These questions have been determined, so far as the laws and
Constitution of Oregon are concerned, by a recent decision of the
Supreme Court of that state in the case of
Strode v.
Washer, 17 Or. 50. In that case, it is held that, in an action
to determine the title to land claimed under a tax deed, evidence
can be received to show that the assessment claimed to have been
made was void in that the property in dispute had been assessed
with other property not owned by the defendants, and the value of
all fixed at a gross sum, and that it was error to exclude such
evidence, even under a statute making a tax deed evidence of the
regularity of an assessment, and it was further held that the
amendment of 1887, changing that feature of the act of 1865 which
made a tax deed conclusive evidence of the regularity of the levy,
assessment, collection of taxes, and sale of the property, did not
impair the obligation of contracts as to purchases made prior to
the amendment, but simply changed the rule of evidence.
This decision was not made till after the trial of the present
case in the circuit court of the United States; but, in the absence
of any previous decision by the Supreme Court of Oregon to the
contrary, we regard it as a conclusive construction of the meaning
and effect of the state statutes in question. We also concur with
the court below in thinking that by no reasonable application of
the rule of
idem sonans can the name of Ida J. Hawthorn be
deemed equivalent to that of Ida J. Hanthorn.
Page 148 U. S. 185
Another particular in which it is claimed on behalf of the
defendant there was a disregard of law invalidating the sale is
found in the assessment of the two lots 3 and 4, in block E, as one
parcel. The statute prescribes that the assessor shall set down in
the assessment, in separate columns,
"a description of each tract or parcel of land to be taxed,
specifying, under separate heads, the township, etc., or, if
divided into lots and blocks, then the number of the lot and
block,"
and the contention is that grouping the lots and fixing the
valuation in a gross sum was not a valid assessment. Such a
question was considered by the Supreme Court of Oregon in the case
of
Strode v. Washer, heretofore cited. There, an
assessment was held to be a nullity which included several lots of
land belonging to different owners in one valuation, and the court
said: "What the effect would be where the lots so assessed all
belong to the same party we express no opinion."
The effect of this irregularity does not seem to have been
considered by the court below, and in view of the expression of the
supreme court of the state just quoted, withholding any opinion as
to the effect of this defective mode of assessment, we do not feel
disposed to base our decision upon it.
As, however, we think that the court below did not err in
permitting the defendant to impugn the tax title by showing that
the name of the owner was wrongly given in the delinquent tax roll,
and in the notice and publication, and in holding that the sale was
thereby invalidated, it follows that its judgment should be
Affirmed.
MR. JUSTICE BREWER did not sit in this case, nor take any part
in its decision.
